Part 1.
TEXAS DEPARTMENT OF HUMAN SERVICES
Chapter 15.
MEDICAID ELIGIBILITY
Subchapter F. BUDGETS AND PAYMENT PLANS
40 TAC §15.503
The Texas Department of Human Services (DHS) proposes to
amend §15.503, concerning protection of spousal income and resources,
in its Medicaid Eligibility chapter. The purpose of the amendment is to allow
DHS to continue to process a Medicaid application in spousal cases when there
is a possibility of abuse or neglect by the community spouse, rather than
to deny the application. DHS will, in those cases, consider the client as
an individual for eligibility and applied income purposes.
Eric M. Bost, commissioner, has determined that for the first five- year
period the proposed section will be in effect there will be no fiscal implications
for state or local governments as a result of enforcing or administering the
section.
Mr. Bost also has determined that for each year of the first five years
the section is in effect the public benefit anticipated as a result of adoption
of the proposed rule will be the continued processing of Medicaid applications
for affected clients, rather than denying them for failure to provide information.
There will be no effect on small or micro businesses as a result of enforcing
or administering the section, because the section applies only to the client's
financial eligibility for Medicaid benefits, not to the operation of businesses.
There is no anticipated economic cost to persons who are required to comply
with the proposed section.
Questions about the content of this proposal may be directed to Judy Coker
at (512) 438-3227 in DHS's Long Term Care Section. Written comments on the
proposal may be submitted to Supervisor, Rules and Handbooks Unit-101, Texas
Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030,
within 30 days of publication in the
Texas Register
.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to these
rules. Accordingly, the department is not required to complete a takings impact
assessment regarding these rules.
The amendment is proposed under the Human Resources Code, Title
2, Chapters 22 and 32, which authorizes the department to administer public
and medical assistance programs and under Texas Government Code §531.021,
which provides the Health and Human Services Commission with the authority
to administer federal medical assistance funds.
The amendment implements the Human Resources Code, §§22.001-
22.030 and §§32.001-32.042.
§15.503.Protection of Spousal Income and Resources.
(a)-(e)
(No change.)
(f)
If a community spouse refuses to cooperate in furnishing
information to establish a spousal protected resource amount (PRA) at the
beginning of a continuous period of institutionalization, the department does
not complete the assessment and does not take further action. No benefits
are authorized, so no penalty is imposed. If an assessment is completed in
conjunction with an eligibility determination, and a community spouse refuses
to furnish information, the department determines the living arrangement before
institutionalization.
(1)
If the couple was living in the same household, the department
denies the application based on the couple's failure to furnish information.
Living in the same household includes temporary separations.
(2)
If the couple is not living in the same household, the
department determines the purpose of separation, the length of separation,
and resources or income commingled or managed jointly by one member of the
couple or a third party.
(3)
If the community spouse refuses to cooperate
in providing information and circumstances indicate possible abuse or neglect
by the community spouse, the department considers the client as an individual
for eligibility and applied income purposes. This is true even if the spouses
were living in the same household prior to the client's nursing facility entry
or application for waiver services.
(g)-(k)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on May 11, 2001.
TRD-200102643
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: June 24, 2001
For further information, please call: (512) 438-3108
40 TAC §§18.1, 18.8, 18.9
The Texas Department of Human Services (DHS) proposes to
amend §18.1, concerning introduction, §18.8, concerning provisional
licensure, and §18.9, concerning licensure renewal and inactive status,
in its Nursing Facility Administrators chapter. The purpose of the amendments
is to further clarify the provisions and requirements of Texas Health and
Safety Code, Chapter 242, Subchapter I; to give DHS the discretion to determine
if a licensed administrator from out of state has sufficient education, training
and experience, or a national certification that warrants issuance of a provisional
license; and to further prevent administrators with proposed revocations against
their licenses from escaping sanctions by allowing their licenses to expire
and later retesting and complying with current licensure requirements in order
to obtain a new license.
Eric M. Bost, commissioner, has determined that for the first five- year
period the sections are in effect there will be no fiscal implications for
state or local government as a result of enforcing or administering the sections.
Mr. Bost also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of adoption
of the proposed rule will be to ensure that nursing facility administrators
licensed in the State of Texas have the necessary licensure qualifications
to provide greater protection of the health and safety of residents and consumers
of nursing facilities DHS regulates. There will be no adverse economic effect
on small or micro businesses, because recognizing the experience, training
and qualifications of out-of-state administrators who do not meet the educational
requirements may increase the availability of licensed nursing facility administrators
who want to practice in Texas. There is no anticipated economic cost to persons
who are required to comply with the proposed sections.
Questions about the content of this proposal may be directed to Lynette
Sanders at (512) 231-5800 in DHS's Credentialing Department. Written comments
on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-093,
Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030,
within 30 days of publication in the
Texas Register
.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to these
rules. Accordingly, the department is not required to complete a takings impact
assessment regarding these rules.
The amendment is proposed under the Health and Safety Code, Chapter
242, which authorizes the department to license and regulate nursing facilities.
The amendment implements the Health and Safety Code, §242.001- 242.268.
§18.1.Introduction.
(a)
(No change.)
(b)
Definitions. The following words and terms, when used in
this chapter, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)-(15)
(No change.)
(16)
Good standing -- The status of a nursing
facility administrator who is in compliance with the statutory and licensure
requirements for the practice of nursing facility administration in the state
of Texas and/or licensing authority of another state. In addition, the terms
of any adverse disciplinary action or settlement agreement imposed by DHS
must be satisfactorily completed.
(17)
[
(18)
[
(19)
[
(20)
[
(21)
[
(22)
[
(23)
[
(24)
[
(25)
[
(26)
[
(27)
[
(28)
[
(29)
[
(30)
[
(31)
[
(32)
[
(33)
[
(34)
[
(35)
[
§18.8.Provisional Licensure.
(a)
The Texas Department of Human Services (DHS)
grants
[
(1)
current licensure or registration as a nursing facility
administrator by another state or other jurisdiction that is in good standing;
or current certification of qualification by any national organization;
and
(2)
a bachelor's degree in any subject from an accredited college
approved by an accrediting association recognized by the Texas Higher Education
Coordinating Board;
or evidence satisfactory to DHS of having completed
sufficient education, training and experience in nursing facility administration;
and
(3)-(5)
(No change.)
(b)
DHS may recognize current licensure, registration
or certificate issued by other state or national organizations if the system
and standards of qualification and examination for a nursing home administrator
license or certification were substantially equivalent to those required in
this state at the time such other license or certificate was issued by such
other state or national organization.
[
(c)-(d)
(No change.)
§18.9.Licensure Renewal and Inactive Status.
(a)-(u)
(No change.)
(v)
A licensee who surrenders a license
, or allows a license
to expire,
in lieu of a formal disciplinary action that proposes the
imposition of a license revocation shall return the license certificate to
DHS and shall be permanently barred from obtaining a license in Texas.
(w)-(x)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on May 11, 2001.
TRD-200102644
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: June 24, 2001
For further information, please call: (512) 438-3108
Chapter 106.
CONTRACT ADMINISTRATION
The Texas Rehabilitation Commission (TRC) proposes the repeal to Chapter
106, §§106.1-106.44, 106.50, and 106.55-106.60 and new §§106.1-106.3,
106.21, 106.31, 106.35, 106.36, 106.105, 106.301, 106.351, 106.353, 106.355,
106.357, 106.451, 106.453-106.455, 106.457, 106.459, 106.461, 106.463, 106.465,
106.467, 106.469, 106.471, 106.473, 106.475, 106.477, 106.479, 106.481, 106.483,
106.563, 106.565, 106.567, 106.569, 106.570, 106.571, 106.573, 106.575, 106.577,
106.579, and 106.581, concerning purchase of goods and services by TRC. The
change is being proposed to bring TRC's purchasing rules into conformance
with contracting policies of the Health and Human Services Commission.
Charles E. Harrison, Jr., Deputy Commissioner for Financial Services, has
determined that for the first five-year period the sections are in effect,
there will be no material fiscal implications for state or local government.
Mr. Harrison also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of enforcing
the sections will be the agency's compliance with Chapter 111, Human Resources
Code. There will be no material effect on small businesses. There is no material
anticipated economic cost to persons who are required to comply with the sections
as proposed.
Comments on the proposal may be submitted to Roger Darley, Assistant General
Counsel, Texas Rehabilitation Commission, 4900 North Lamar Boulevard, Suite
7300, Austin, Texas 78751.
Subchapter A. ACQUISITION OF CLIENT GOODS AND SERVICES
40 TAC §§106.1 - 106.36
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Rehabilitation Commission or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the Texas Human Resources
Code, Title 7, Chapter 111, §111.018 and §111.023, which provides
the Texas Rehabilitation Commission with the authority to promulgate rules
consistent with Title 7, Texas Human Resources Code.
No other statute, article, or code is affected by this proposal.
§106.1.Purpose.
§106.2.Specific State Contracting Law.
§106.3.Criteria for Determining When a Contract Is Required.
§106.4.Definitions.
§106.5.Principles of Contract Administration.
§106.6.Ethical Standards.
§106.7.Non-discrimination.
§106.8.Small Businesses and Businesses Owned by Minorities, Women, and Persons with Disabilities.
§106.9.Documented Rate-Setting Methodologies.
§106.10.General Requirements for Contractors.
§106.11.Purchases for Individual Clients.
§106.12.Solicitations for Express Contracts.
§106.13.Extent of Competition for Acquisition by Express Contracts.
§106.14.Cancellation or Suspension of Solicitation.
§106.15.Timeliness of Response.
§106.16.Modification or Withdrawals of Bids, Offers, and Proposals before Solicitation Closing Date.
§106.17.Confidentiality and Release of Information.
§106.18.Evaluation of Bids, Offers, and Proposals.
§106.19.Cost or Price Analysis.
§106.20.Express Contract Specifications.
§106.21.Duration of an Express Contract.
§106.22.Requirements for Express Contracts.
§106.23.Access to Contractor Facilities and Records.
§106.24.Contract Monitoring Principles.
§106.25.Risk Assessment.
§106.26.Monitoring Performance.
§106.27.Monitoring Financial Compliance.
§106.28.Corrective Action Plan.
§106.29.Independent Audits.
§106.30.Recoupment of Improper Payments.
§106.31.Settling Disagreements.
§106.32.Adverse Actions.
§106.33.Contract Termination.
§106.34.Protests.
§106.35.Appeals.
§106.36.Contract Review Committee.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on May 14, 2001.
TRD-200102677
Sylvia F. Hardman
Deputy Commissioner for Legal Services
Texas Rehabilitation Commission
Earliest possible date of adoption: June 24, 2001
For further information, please call: (512) 424-4050
40 TAC §106.37
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Rehabilitation Commission or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Texas Human Resources
Code, Title 7, Chapter 111, §111.018 and §111.023, which provides
the Texas Rehabilitation Commission with the authority to promulgate rules
consistent with Title 7, Texas Human Resources Code.
No other statute, article, or code is affected by this proposal.
§106.37.Adjudications by Disability Determination Services.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on May 14, 2001.
TRD-200102678
Sylvia F. Hardman
Deputy Commissioner for Legal Services
Texas Rehabilitation Commission
Earliest possible date of adoption: June 24, 2001
For further information, please call: (512) 424-4050
40 TAC §§106.38 - 106.40
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Rehabilitation Commission or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the Texas Human Resources
Code, Title 7, Chapter 111, §111.018 and §111.023, which provides
the Texas Rehabilitation Commission with the authority to promulgate rules
consistent with Title 7, Texas Human Resources Code.
No other statute, article, or code is affected by this proposal.
§106.38.Procurement Authority.
§106.39.Procurement Policies and Regulations.
§106.40.Compliance with Other State Laws.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on May 14, 2001.
TRD-200102679
Sylvia F. Hardman
Deputy Commissioner for Legal Services
Texas Rehabilitation Commission
Earliest possible date of adoption: June 24, 2001
For further information, please call: (512) 424-4050
40 TAC §§106.41 - 106.44
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Rehabilitation Commission or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the Texas Human Resources
Code, Title 7, Chapter 111, §111.018 and §111.023, which provides
the Texas Rehabilitation Commission with the authority to promulgate rules
consistent with Title 7, Texas Human Resources Code.
No other statute, article, or code is affected by this proposal.
§106.41.Debarment and Suspension of Current and Potential Contractor's Rights.
§106.42.Causes for and Conditions of Debarment.
§106.43.Causes for and Conditions of Suspension.
§106.44.Proof Required for Debarment or Suspension.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on May 14, 2001.
TRD-200102680
Sylvia F. Hardman
Deputy Commissioner for Legal Services
Texas Rehabilitation Commission
Earliest possible date of adoption: June 24, 2001
For further information, please call: (512) 424-4050
40 TAC §106.50
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Rehabilitation Commission or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Texas Human Resources
Code, Title 7, Chapter 111, §111.018 and §111.023, which provides
the Texas Rehabilitation Commission with the authority to promulgate rules
consistent with Title 7, Texas Human Resources Code.
No other statute, article, or code is affected by this proposal.
§106.50.Schedule of Rates for Medical Services.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on May 14, 2001.
TRD-200102681
Sylvia F. Hardman
Deputy Commissioner for Legal Services
Texas Rehabilitation Commission
Earliest possible date of adoption: June 24, 2001
For further information, please call: (512) 424-4050
40 TAC §§106.55 - 106.60
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Rehabilitation Commission or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the Texas Human Resources
Code, Title 7, Chapter 111, §111.018 and §111.023, which provides
the Texas Rehabilitation Commission with the authority to promulgate rules
consistent with Title 7, Texas Human Resources Code.
No other statute, article, or code is affected by this proposal.
§106.55.Claim for Breach of Contract; Notice.
§106.56.Negotiation.
§106.57.Partial Resolution of Claim.
§106.58.Payment of Claim from Appropriated Funds.
§106.59.Incomplete Resolution.
§106.60.Mediation.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on May 14, 2001.
TRD-200102682
Sylvia F. Hardman
Deputy Commissioner for Legal Services
Texas Rehabilitation Commission
Earliest possible date of adoption: June 24, 2001
For further information, please call: (512) 424-4050
Subchapter A. GENERAL
40 TAC §§106.1 - 106.3, 106.21, 106.31, 106.35, 106.36
The new sections are proposed under the Texas Human Resources
Code, Title 7, Chapter 111, §111.018 and §111.023, which provides
the Texas Rehabilitation Commission with the authority to promulgate rules
consistent with Title 7, Texas Human Resources Code.
No other statute, article, or code is affected by this proposal.
§106.1.Purpose.
This chapter supplements the general procedures and criteria prescribed
by Health and Human Services Commission in Title 1, Texas Administrative Code,
Chapter 391, to govern the purchase of goods and services by purchasing entities
that are efficient, economical and achieve health and human services procurement
objectives.
§106.2.Scope.
(a)
This chapter applies to the purchase of goods and services
by the Texas Rehabilitation Commission, whether for administrative or client
use or benefit. The provisions of this chapter govern to the extent of any
conflict with a procedure or requirement prescribed by another state agency
other than:
(1)
a procedure or requirement relating to historically underutilized
businesses; and
(2)
a procedure or requirement relating to the purchase of
goods or services from persons with disabilities.
(b)
This chapter does not apply to the following transactions:
(1)
The lease, purchase, or lease-purchase of real property;
(2)
The award of grants, except as specifically provided herein;
or
(3)
Interstate or international agreements executed in accordance
with applicable law.
§106.3.Authority.
The Texas Rehabilitation Commission receives delegated purchasing authority
for procuring administrative goods and services from Government Code, §2154.144.
The legal authority for the Texas Rehabilitation Commission to enter into
contracts is Title 7, §111.052, Human Resources Code. TRC will also comply
with specific contracting procedures found in the Interagency Cooperation
Act, Government Code §§771.001-771.010; Interlocal Cooperation Act
(Government Code §§791.001, et seq.)
§106.21.Texas Rehabilitation Commission Procurement Objectives.
In addition to procurement objectives which are or may be prescribed
by Health and Human Services Commission, the procedures and requirements of
this chapter are established to accomplish the following objectives:
(1)
Small Businesses and Businesses Owned by Minorities, Women,
and Persons with Disabilities. It is the policy of TRC to ensure that small
businesses and businesses that are at least 51% owned by minority group members,
women, and persons with disabilities have equal opportunity to compete for
and to be selected for the award of contracts. TRC will take all necessary
affirmative steps to ensure that such businesses have an opportunity to obtain
TRC business. In addition, TRC will assist its contractors to take such affirmative
steps.
(2)
Non-Discrimination. TRC does not discriminate on the basis
of race, color, religion, sex, national origin, age, disability, or veteran
status in the procurement of goods and services.
§106.31.Definitions.
The following words and terms, when used in this subchapter, have the
following meanings, unless the context clearly indicates otherwise:
(1)
Adverse action--Any action in which TRC:
(A)
terminates or suspends a contract between a contractor
and TRC before the contract's stated expiration date;
(B)
denies payment in whole or part for any claim(s) arising
under a contract when the contractor has filed the claim within the time limits
allowed by the contract or by TRC rules;
(C)
terminates or suspends payments in whole or part to a contractor;
(D)
demands payment for contract or rule violations;
(E)
directs one of its contractors to terminate or suspend
a subcontract or payments to any subcontractor.
(2)
Bid--An offer to contract with TRC submitted in response
to a bid invitation issued by TRC.
(3)
Buyer Support Services (BSS)--The Central Office unit with
authority and responsibility for promulgating and maintaining TRC policy and
procedures for grant and contract administration. The BSS is the Central Office
single-point-of-contact for assisting TRC's customers to comply with these
policies and procedures.
(4)
Client choice--Individuals with disabilities have a right
under the Rehabilitation Act to make informed choices from among alternative
service providers.
(5)
TRC--The Texas Rehabilitation Commission.
(6)
TRC Commissioner--The Chief Administrative Officer of the
Texas Rehabilitation Commission.
(7)
Contractor records--All financial and programmatic records,
supporting documents, papers, statistical data, or any other written or electronic
materials that are pertinent to each specific contract instrument.
(8)
Cost reimbursement contract--An express contractual relationship
that requires payment to the contractor and all reasonable, allocable and
allowable costs incurred during the performance of the contract.
(9)
Delegation--The written authority of the TRC Commissioner
pursuant to Title 7, Human Resources Code, §111.052, and Board Policies
Manual to authorize employees serving in designated positions to enter into
and sign express contracts.
(10)
Enrollment--The contracting, on a competitive or noncompetitive
basis, of vendors or suppliers that meet qualifications or criteria for participation
specified by the purchasing entity and agree to provide the contracted goods
and/or services in accordance with terms and conditions specified by the purchasing
entity.
(11)
Express contract--A written agreement for goods or services
signed by TRC and a second party specifying the rights and obligations of
each party and the terms and conditions that govern interactions between the
parties.
(12)
Fee for service--The amount that TRC pays for a "unit"
of service.
(13)
Immediate family--A spouse, child, parent, or sibling
of a TRC employee.
(14)
Impartial Hearing Officer (IHO)--A person appointed by
the TRC Commissioner to conduct hearings on formal protests and appeals of
grant, contract, or contract procurement matters. The IHO must be an impartial
person with knowledge of vocational rehabilitation and procurement programs
and regulations. An attorney or other staff member who has directly or indirectly
participated in, or given advice on, issues that are the basis for a particular
hearing cannot be the IHO in that hearing.
(15)
Independent audit--An audit performed by a person independent
of the organization in accordance with generally accepted auditing standards.
(16)
Individualized Plan for Employment (IPE)--Plan of services
documenting informed client choice from among alternative vocational goals,
rehabilitation services, and service providers.
(17)
Mediation--Includes face-to-face meetings and/or negotiations
between the contractor and the appropriate Texas Rehabilitation Commission
representative without the presence of a third party acting as mediator.
(18)
Noncompetitive procurement--Procurement that promotes
a sufficient pool of qualified service providers from which the client can
make informed choices. Such open acquisition procurement methodologies include:
(A)
use of only a purchase order;
(B)
use of enrolled providers;
(C)
use of providers responding to a noncompetitive request
for offers; and/or
(D)
use of sole source contracts, for the purchase of goods
and/or services.
(19)
Notice of Provider Enrollment (NPE)--Notice announcing
the availability of a provider enrollment opportunity.
(20)
Person--An individual, partnership, corporation, association,
governmental subdivision, or a public or private organization that is not
a state agency.
(21)
Provider--An individual or business entity that supplies
goods or services to a purchasing entity under an agreement or contract to
provide such goods or services.
(22)
Provider enrollment--A noncompetitive method for developing
a pool of service providers who have met the service standards and provider
qualifications made available by TRC.
(23)
Purchase order--A written document which authorizes the
purchase of goods and/or services, which establishes the terms and conditions
of the purchase, which obligates TRC to pay for the goods and/or services
upon receipt, and which is signed by a representative of TRC.
§106.35.Compliance with Federal Requirements.
The Disability Determination Services will comply with the laws, rules,
regulations, and guidelines of the Social Security Administration.
§106.36.Compliance with State Requirements.
TRC will comply with other state requirements as follows:
(1)
If the business relationship with the other party involves
purchase of good or services and the purchase is for special or technical
goods or services from another state agency, then the appropriate instrument
to establish the relationship with the other party is an Interagency Cooperation
Contract.
(2)
If the business relationship with the other party involves
purchase of goods or services from a local government then the appropriate
instrument to establish the relationship with the other party is an Interlocal
Cooperation Contract.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on May 14, 2001.
TRD-200102683
Sylvia F. Hardman
Deputy Commissioner for Legal Services
Texas Rehabilitation Commission
Earliest possible date of adoption: June 24, 2001
For further information, please call: (512) 424-4050
40 TAC §106.105
The new section is proposed under the Texas Human Resources
Code, Title 7, Chapter 111, §111.018 and §111.023, which provides
the Texas Rehabilitation Commission with the authority to promulgate rules
consistent with Title 7, Texas Human Resources Code.
No other statute, article, or code is affected by this proposal.
§106.105.Alternative Purchasing Methods - Schedule of Rates for Medical Services.
Pursuant to Human Resources Code, §111.055(a), the board adopts
the following rules and standards governing the determination of rates TRC
will pay for medical services.
(1)
A proposed rate schedule for medical services will be developed
and maintained by the TRC Deputy Commissioner for Administrative Services.
The proposed rate schedule will be updated and submitted for board approval
at least annually. The proposed rate schedule will include a comparison of
the proposed rate schedule to other cost-based rates for medical services,
including Medicaid and Medicare rates, and for any proposed rate that exceeds
the Medicare or Medicaid rate, will document the reasons why the proposed
rate ensures the best value in the use of dollars for clients.
(2)
The current proposed rate schedule will be made available
to members of the public upon request. Members of the public may submit written
comments concerning the proposed rate schedule at any time to the TRC Deputy
Commissioner for Administrative Services, 4900 North Lamar Boulevard, Austin,
Texas 78751.
(3)
Annually, the board shall adopt by rule a schedule of rates
based upon the proposed rate schedule submitted by the TRC Deputy Commissioner
for Administrative Services. The board shall hold a public hearing before
adopting the rate schedule to allow interested persons to submit comments.
In adopting the rate schedule, the board shall compare the proposed rate schedule
to other cost-based rates for medical services, including Medicaid and Medicare
rates, and for any rate adopted that exceeds the Medicare or Medicaid rate,
document the reasons why the rate adopted ensures the bast value in the use
of dollars for clients.
(4)
The following standards will be used when determining the
rates TRC will pay for medical services:
(A)
Rates will be established based on Medicare and Medicaid
schedules for current procedural terminology (CPT). Where Medicare and Medicaid
schedules are not applicable, rates that represent best value will be established
based upon factors that include reasonable and customary industry standards
for each specific service.
(B)
Rates will be established at a level adequate to insure
availability of qualified providers, and in adequate numbers to provide assessment
and treatment, and within a geographic distribution that mirrors client/claimant
distribution.
(C)
Exceptions to established rates can be made on a case by
case basis by the TRC medical director.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed
with the Office of the Secretary of State, on May 14, 2001.
TRD-200102684
Sylvia F. Hardman
Deputy Commissioner for Legal Services
Texas Rehabilitation Commission
Earliest possible date of adoption: June 24, 2001
For further information, please call: (512) 424-4050
40 TAC §106.301
The new section is proposed under the Texas Human Resources
Code, Title 7, Chapter 111, §111.018 and §111.023, which provides
the Texas Rehabilitation Commission with the authority to promulgate rules
consistent with Title 7, Texas Human Resources Code.
No other statute, article, or code is affected by this proposal.
§106.301.Availability of Protest Procedures.
A potential contractor who has submitted a bid or proposal for a proposed
contract may protest non-selection decisions based on alleged improprieties
in the contract award process.
(1)
A written protest must be received by the Director of BSS
within 15 days of the protestor's receipt of notice of TRC decision being
protested. Failure to comply with the foregoing time frame will result in
the dismissal of the protest for want of jurisdiction. In order for the protest
to be evaluated on its merits, it must state:
(A)
the protestor's name and specific action the protestor
is requesting be reconsidered;
(B)
how the decision, action, or inaction by Texas Rehabilitation
Commission (TRC) violated published TRC policy, or state or federal laws and
regulations regarding procurement, or contract;
(C)
the protestor's claim with specific supporting information
(refer to pertinent parts of the original request for proposal, offer, bid,
or the award documents);
(D)
an explanation of the facts under disagreement; and
(E)
the subsequent action the offeror is requesting.
(2)
The Director of BSS limits the review of the protest to
a desk review of the materials supplied by the protestor and TRC staff who
made the decision.
(3)
The Director of BSS sends the decision on the protest to
the protestor within 30 days of receipt of the written request.
(4)
A contract may be awarded even though there is a pending
protest, if there is a bona fide emergency, or if an award is required by
state or federal law to be completed by a particular date.
(5)
TRC's decision on the protest is the final agency action.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on May 14, 2001.
TRD-200102685
Sylvia F. Hardman
Deputy Commissioner for Legal Services
Texas Rehabilitation Commission
Earliest possible date of adoption: June 24, 2001
For further information, please call: (512) 424-4050
40 TAC §§106.351, 106.353, 106.355, 106.357
The new sections are proposed under the Texas Human Resources
Code, Title 7, Chapter 111, §111.018 and §111.023, which provides
the Texas Rehabilitation Commission with the authority to promulgate rules
consistent with Title 7, Texas Human Resources Code.
No other statute, article, or code is affected by this proposal.
§106.351.Purpose.
The purpose of this subchapter is to establish the authority and responsibility
to promote full and equal business opportunities for all businesses in state
contracting in accordance with the goals specified in the State of Texas Disparity
Study. It is the policy of the State of Texas and the Texas Rehabilitation
Commission to encourage the use of historically underutilized businesses (HUBs)
and to implement this policy through race, ethnic, and gender-neutral means.
§106.353.Applicability.
This subchapter applies to all contracts and purchase orders established
under authority delegated to TRC by the General Services Commission, Title
10, Government Code, section 2151. It also applies to all bids, proposals,
offers, or other applicable expressions of interest over $100,000 as defined
in Texas Administrative Code, Title 1,Part 5, Chapter 111. Subchapter B, §111.14
and Texas Administrative Code Chapter 2161 Subchapter F relating to HUB subcontracting
responsibilities.
§106.355.Definitions.
In this subchapter, the following definitions apply.
(1)
Economically Disadvantage Person -- A person who is economically
disadvantaged because of the person's identification as a member of a certain
group, as defined in Texas Administrative Code, Title 1, Part 5, Chapter 111,
Subchapter B, Rule 111.12, and who has suffered the effects of discriminatory
practices or other similar insidious circumstances over which the person has
no control.
(2)
Good Faith Effort (GFE) -- Evidence of certain criteria
used by prime contractors to promote inclusion of HUBs in contracts over $100,000
or more as defined in TAC §111.13 and §111.14. When applied to agency
GFE, the state auditor shall consider whether the agency; has adopted rules
under §2161.003, Government Code; has used the General Services Commission
(GSC) directory and other resources to identify HUBs that are able to contract
with the agency; made good faith, timely efforts to contact identified HUBs
regarding contracting opportunities; and conducted its procurement program
in accordance with the good faith methodology set out in GSC rules.
(3)
Historically Underutilized Business (HUB) -- A business
entity that is a corporation, sole proprietorship, partnership, joint venture,
etc. owned or operated by an economically disadvantaged person or persons
as defined in Texas Administrative Code, Title 1, Part 5, Chapter 111, Subchapter
B, Rule 111.12 with its principal place of business in Texas.
(4)
HUB Subcontracting Plan (HSP) -- a plan required to be
submitted with bids, proposals, offers, or other applicable expressions of
interest that determine or describe HUB subcontracting opportunities probable
under the contract as defined in Texas Administrative Code, Title 1, Part
5, Chapter 111, Subchapter B, Rules 111.13 and 111.14.
§106.357.Adoption of Rules.
In accordance with Government Code §2161.003, TRC adopts the rules
of the General Services Commission at Title 1, Part 5, Chapter 111, Subchapter
B, §§111.11 through 111.28, Texas Administrative Code (relating
to the HUB Program), which rules were promulgated by the General Services
Commission pursuant to Government Code, §2161.002 .
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State, on May 14, 2001.
TRD-200102686
Sylvia F. Hardman
Deputy Commissioner for Legal Services
Texas Rehabilitation Commission
Earliest possible date of adoption: June 24, 2001
For further information, please call: (512) 424-4050
40 TAC §§106.451, 106.453, 106.454
The new sections are proposed under the Texas Human Resources
Code, Title 7, Chapter 111, §111.018 and §111.023, which provides
the Texas Rehabilitation Commission with the authority to promulgate rules
consistent with Title 7, Texas Human Resources Code.
No other statute, article, or code is affected by this proposal.
§106.451.Standards of Conduct for Procurement Personnel.
(a)
This section states the ethical standards of conduction
required of TRC employees, vendors, and potential vendors when involved in
grants or contracts with TRC.
(b)
An employee may not:
(1)
participate in work on a TRC contract knowing that the
employee or member of the employee's immediate family has an actual or potential
financial interest in the contract, including prospective employment;
(2)
solicit or accept anything of value from an actual or potential
vendor;
(3)
be employed by, or agree to work for, a vendor or potential
vendor;
(4)
knowingly disclose information for personal gain.
(c)
A former employee may not represent or receive compensation
from any person concerning any contractual matter in which the former employee
participated during his or her employment with the state.
(d)
A vendor or potential vendor may not offer, give, or agree
to give any employee anything of value.
(e)
When an actual or potential violation of subsections (b)-(d)
of this section is discovered, the person discovering the violation shall
promptly file a written statement concerning the matter with an appropriate
supervisor. The person may also request written instructions and disposition
of the matter.
(f)
If an actual violation of subsections (b)-(d) of this section
occurs or is not disclosed and remedied, the employee in violation may be
either reprimanded, suspended, or dismissed.
§106.453.Standards of Conduct for Contracted Vendors and Suppliers.
(a)
A former employee may not represent or receive compensation
from any person concerning any contractual matter in which the former employee
participated during his or her employment with the state.
(b)
A vendor or potential vendor may not offer, give, or agree
to give any employee anything of value.
(c)
When an actual or potential violation of subsections (b)-(d)
of this section is discovered, the person discovering the violation shall
promptly file a written statement concerning the matter with an appropriate
supervisor. The person may also request written instructions and disposition
of the matter.
(d)
If an actual violation of subsections (b)-(d) of this section
occurs or is not disclosed and remedied, the vendor or potential vendor may
be barred from receiving future grants or contracts and an existing grant
or contract may be canceled.
§106.454.Purchases for Individual Clients.
Purchases of goods and/or services for individual clients must be consistent
with the Individualized Plan for Employment (IPE) which is jointly developed
by TRC Counselor and eligible client.
(1)
The IPE includes, but is not limited to:
(A)
goals and intermediate objectives for which the goods and
services are necessary;
(B)
estimated date of initiation of the service, and the estimated
duration of the service;
(C)
services and service providers chosen by the client from
among alternatives presented by the TRC Counselor;
(D)
participation by the client in the cost of the goods and
services;
(E)
terms and conditions applicable to the purchase of the
goods and services;
(F)
comparable services and benefits applicable to the services
to be purchased.
(2)
In developing an individual's IPE, TRC provides the individual,
or assists the individual in acquiring, information necessary to make an informed
choice from among alternative services and providers of services that are
needed to achieve the goal of the IPE.
(3)
In developing an IPE, and prior to purchasing any service
for a client, TRC determines whether comparable services and benefits exist
under any other program, and whether those services or benefits are available
to the individual client. If comparable services or benefits exist and are
available to the client within a reasonable period of time, TRC shall use
those comparable services and/or benefits to meet, in whole or in part, the
cost of services. If TRC and another resource are paying for a good or service
for a client, the payment by the other resource must be applied first.
(4)
TRC may establish a reasonable fee schedule for purchased
client goods and services. These fee schedules are designed to ensure the
lowest reasonable cost and best value.
(5)
TRC issues purchase orders for all purchases of goods and
services for individual clients. Purchase orders serve as prior written authorization
of the purchase, establish the terms and conditions of the purchase, and obligate
TRC to pay for the goods and/or services which are delivered by the provider
and received by the client.
(6)
TRC establishes and maintains policies for competitive
purchasing of goods and services which exceed the unit dollar value specified.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on May 14, 2001.
TRD-200102687
Sylvia F. Hardman
Deputy Commissioner for Legal Services
Texas Rehabilitation Commission
Earliest possible date of adoption: June 24, 2001
For further information, please call: (512) 424-4050
40 TAC §§106.455, 106.457, 106.459, 106.461, 106.463, 106.465, 106.467, 106.469, 106.471 106.473, 106.475, 106.477, 106.479, 106.481, 106.483, 106.563 106.565, 106.567, 106.569
The new sections are proposed under the Texas Human Resources
Code, Title 7, Chapter 111, §111.018 and §111.023, which provides
the Texas Rehabilitation Commission with the authority to promulgate rules
consistent with Title 7, Texas Human Resources Code.
No other statute, article, or code is affected by this proposal.
§106.455.Principles of Contract Administration.
(a)
To provide a foundation for administering contracts funded
in whole or part, by or through TRC, TRC must:
(1)
consider the best interests of persons served, the public,
and the State of Texas at all times;
(2)
provide for a sufficient pool of qualified service providers
and provide the client with information about service providers so that clients
may make informed choices from among alternatives;
(3)
use competitive procurement methodologies as the primary
procurement methodology whenever possible, to secure best value and to provide
an opportunity for all qualified organizations or persons to do business with
TRC; and
(4)
use available funds in the most efficient and effective
manner in accordance with all applicable state and federal laws and regulations.
(b)
Pursuant to the Uniform Grant and Contract Management Act
of 1981 (Texas Government Code, Chapter 783), TRC is required to comply with
the Uniform Grant and Contract Management Standards for State Agencies of
the Governor's Office of Budget and Planning when administering contracts
to state and local governments.
(c)
To ensure that state and/or federal funds have been expended
appropriately, TRC will require all contractors receiving grants or operating
under cost-reimbursement contracts funded solely with non-federal funds, including
for-profit contractors, to comply with OMB Circular A-110, Uniform Administrative
Requirements for Grants and Agreements with Institutions of Higher Education,
Hospitals, and other Non-Profit Organizations.
§106.457.Criteria for Determining when contract is required.
(a)
If the business relationship with the other party involves
financial assistance and the other party is responsible for administering
the program, then the appropriate instrument to establish the relationship
with the other party is a contract.
(b)
If the business relationship with the other party involves
purchase of client goods or services and if both of the conditions listed
in paragraphs (1) and (2) of this subsection are met, then the appropriate
instrument to establish the relationship with the other party is a purchase
order, and no additional express contract is required.
(1)
The services are allowed by state or federal law.
(2)
The services are available to the general public.
(c)
If the business relationship with the other party involves
purchase of client goods or services and one of the following conditions listed
in paragraphs (1)-(6) of this subsection is met, then the appropriate instrument
to establish the relationship with the other party is an express contract.
(1)
A contract is required by state or federal law.
(2)
Special or technical goods or services are to be provided
by another state agency.
(3)
The goods or services are provided according to TRC designated
standards and criteria.
(4)
The need exists to provide special protection to TRC or
TRC clients.
(5)
The need exists to clearly differentiate employee versus
independent contractor status.
(6)
Defined high risk factors, or other conditions, exist that
would make the establishment of an express contract in the best interests
of TRC.
§106.459.General Requirements for Contractors.
(a)
A contractor providing goods or services to TRC must comply
with all applicable federal or state laws, rules, regulations, and standards.
(b)
TRC shall not contract or do business with contractors
whose license, permit, or certificate has been revoked by another Health or
Human Services, Public Safety, or Criminal Justice agency.
(c)
A contractor providing goods or services to TRC must disclose
to TRC if it is currently held in abeyance from or barred from the award of
a federal or state contract.
(d)
A contractor currently held in abeyance from or barred
from the award of a federal or state contract may not contract or subcontract
with TRC.
(e)
If a contractor is or becomes delinquent in the payment
of its Texas franchise tax, payment to the contractor may be withheld until
such delinquency is remedied.
(f)
A contractor providing goods or services to TRC clients
must report abuse, neglect, and exploitation of TRC clients in compliance
with federal and state law.
(g)
A contractor providing goods or services to TRC clients
must report to the appropriate state licensing agency any action that a professional,
licensed or certified by the State of Texas and employed by the contractor,
has committed that constitutes grounds for denial or revocation of the certification
or licensure.
(h)
Contractors must certify that they are not delinquent in
child support payments as required by the Texas Family Code.
(i)
All contracts for goods and services will also include
the following provisions:
(1)
Termination for cause and for mutual convenience of the
contractor and TRC including the manner in which it will be implemented;
(2)
Requirements and regulations pertaining to patent rights
and copyrights with respect to any discovery, invention, or data which arises
or is developed in the course of or under such a contract;
(3)
Access by TRC, the federal government, and other state
agencies or any of their duly authorized representatives to any documents,
papers, and records of the contractor which are directly pertinent to that
specific contract for the purpose of making audit, examination, excerpts,
and transcriptions;
(4)
Requirements for retention of records after the contract
is completed and all pending matters are closed;
(5)
Compliance with all applicable federal standards, orders,
or requirements regarding environmental protection;
(6)
Compliance with mandatory standards and policies relating
to energy efficiency;
(7)
Compliance with lobbying restrictions.
§106.461.Cancellation or Suspension of Solicitation.
TRC has the right to accept or reject all or any part of any bids,
offers, or proposals submitted in response to a solicitation as specified
in TRC policy. TRC may cancel or suspend a solicitation for any of the following
reasons:
(1)
Specifications and costs in the ITB, RFO, or RFP were inadequate,
ambiguous, or otherwise deficient;
(2)
Goods or services are no longer required;
(3)
Bids, offers, or proposals received indicated that the
services requested can be purchased by a different, less expensive method;
(4)
All bids, offers, and proposals received are considered
unreasonable;
(5)
Staff has good reason to believe during the course of procurement
that the bids, offers, or proposals are fraudulent or submitted in bad faith;
or
(6)
TRC determines that cancellation or suspension is in the
State's best interest.
§106.463.Recoupment of Improper Payments.
(a)
TRC recovers improper payments when it is determined that
contractors have been overpaid.
(b)
TRC notifies the contractor in writing of the payment discrepancy,
the method of computing the reasonable dollar amount to be refunded, and any
other actions TRC may take.
§106.465.Settling Disagreements.
(a)
TRC will handle disagreements with the contractor using
applicable TRC policies and procedures. TRC may withhold payments, discontinue
referrals, and/or remove clients pending resolution of a disagreement.
(b)
When a disagreement rises to the level of a dispute, it
will be resolved in accordance with the section on Protests and Appeals.
§106.467.Adverse Actions.
(a)
TRC may implement adverse actions based on nonperformance
or noncompliance with the terms of the express contract or grant. These actions
may include:
(1)
Suspension of referrals;
(2)
Withholding of payments;
(3)
Disallowance of all or part of the cost of grants and cost
reimbursement contracts only;
(4)
Termination; and
(5)
Other remedies allowed by state and federal laws and these
rules.
(b)
A contractor or grantee has the right to appeal any adverse
action.
§106.469.Contract Termination.
(a)
TRC may terminate a contract for the following reasons:
(1)
Lack of funding;
(2)
Mutual agreement;
(3)
Convenience;
(4)
Making a false certification that is a material breach
of contract; and
(5)
Other reasonable cause.
(b)
The letter of notification will be sent by TRC to the contractor.
(c)
When a contract is terminated, a review is conducted to
determine any overpayment or underpayment. Settlement of claims under terminated
contracts may be made by a negotiated agreement or a determination by TRC.
The contractor and each subcontractor are responsible for the prompt settlement
of the termination claims, including claims from employees, vendors, and subcontractors.
(d)
When a grant or cost reimbursement contract is terminated,
equipment and supplies purchased under the contract may be subject to disposition
as determined by TRC in accordance with the terms of the contract.
§106.471.Access to Contractor Facilities and Records.
The following requirements will be included in each contract.
(1)
Contractors must allow TRC and all appropriate federal
and state agencies or their representatives access to contractor facilities
to inspect, monitor, audit or, evaluate contractor records, and supporting
documents pertaining to client goods or services provided. Contractors and
subcontractors must make documents available at reasonable times and for reasonable
periods.
(2)
Contractors must keep financial and supporting documents,
statistical records, and any other records pertinent to the client goods or
services for which a claim or cost report is submitted to TRC or its agent.
The records and documents must be kept for a period specified in the contract.
If any litigation, claim, or audit involving these records begins before the
specified time period expires, the contractor must keep the records and documents
until all litigation, claims, or audit findings are resolved.
(3)
If a contractor is terminating business operations, the
contractor must ensure that:
(A)
records are stored and accessible; and
(B)
that someone is responsible for adequately maintaining
the records.
§106.473.Independent Audits.
(a)
Contractors receiving operating funds through grants, cost-reimbursement
contracts, and other contracts identified by TRC are required to have an independent
audit as specified in the contract terms. Copies of these independent audit
reports shall be submitted to TRC for review. Independent audit work papers
may also be reviewed at the discretion of TRC.
(b)
The contractors are audited for compliance with federal
and state laws and regulations, TRC policy and standards, and the terms of
the contract.
§106.475.Contract Monitoring Principles.
All purchases by TRC are subject to monitoring depending on the type
of funding source and nature of contract. These may include:
(1)
Verification of delivery of goods or services;
(2)
Verification that the goods or services meet contract specifications;
(3)
Verification that the payment was the correct amount for
the goods or services received;
(4)
Verification that the total of any third party payment
and any TRC payment did not exceed the maximum contract rate;
(5)
Analysis of aggregate purchases;
(6)
Routine on-site performance and financial monitoring;
(7)
Audit conducted by TRC;
(8)
Independent audit when required by contract terms.
§106.477.Risk Assessment.
TRC risk assessment process targets its on-site monitoring and compliance
audit resources. Risk assessment criteria are established in TRC policy.
§106.479.Monitoring Performance.
TRC will compare contractor performance to the goals, outcomes, measures,
or standards established in the contract to assess the degree to which they
are being met.
§106.481.Monitoring Financial Compliance.
(a)
Financial monitoring is designed to ensure that:
(1)
TRC received the goods or services paid for; and
(2)
The total amount paid by TRC and any third party was not
in excess of the contracted amount;
(3)
The contractor maintains the financial records and internal
controls necessary to adequately account for claims under the contract.
(b)
TRC may use sampling methods in monitoring and auditing
contracts.
(c)
The contractor has the burden of proof in establishing
entitlement to payments made under the contract.
§106.483.Corrective Action Plan.
The contractor will prepare and implement a corrective action plan
in response to TRC findings of a deficiency. The corrective action plan must
be negotiated to the satisfaction of TRC prior to implementation. TRC will
subsequently monitor and document the contractor's compliance with the corrective
action plan.
§106.563.Debarment and Suspension of Current and Potential Contractor Rights.
(a)
Requirements in this section are applicable to all types
of contracts with TRC.
(b)
Termination of rights to continue an existing contract,
to receive a new contract, to participate as a provider or manager, or to
make a bid, offer, application, or proposal for a TRC contract. The debarment
is for a specified time commensurate with the seriousness of the violation,
the extent of the violation, prior impositions of sanctions or penalties,
willingness to comply with program rules and directives, and other pertinent
information. The maximum period of debarment is six years, unless a longer
time is mandated by requirements other than those in this chapter.
(c)
Temporary suspension of a contractor's or potential contractor's
rights to conduct business with TRC. A suspension is in effect until an investigation,
hearing, or trial is concluded and TRC can make a determination about:
(1)
the contractor's future right to contract or subcontract;
or
(2)
a potential contractor's future right to have TRC consider
its offer, bid, proposal, or application.
(d)
For purposes of both debarment and suspension of contractual
rights, TRC may impute the conduct of an individual, corporation, partnership,
or other association to the contractor, potential contractor, or the responsible
entity of the contractor or potential contractor with whom the individual,
corporation, partnership, or other association is employed or otherwise associated.
Even though the underlying conduct may have occurred while an individual,
corporation, partnership, or other association was not associated with the
contractor or potential contractor, suspension of contractual rights or debarment
may be imposed. Remedial actions taken by the responsible officials of the
contractor or potential contractor will be considered in determining whether
either suspension of contractual rights or debarment is warranted.
§106.565.Causes for and Conditions of Debarment.
(a)
TRC may remove contractual rights from an individual or
legal entity for causes including, but not limited to, the following:
(1)
being found guilty, pleading guilty, pleading nolo contendere,
or receiving a deferred adjudication in a criminal court, relating to:
(A)
obtaining, attempting to obtain, or performing a public
or private contract or subcontract;
(B)
embezzlement, theft, forgery, bribery, falsification or
destruction of records, any form of fraud, receipt of stolen property, or
any other offense indicating moral turpitude or a lack of business integrity
or honesty;
(C)
dangerous drugs, controlled substances, or other drug-related
offense;
(D)
federal antitrust statutes arising from the submission
of bids or proposals;
(E)
any physical or sexual abuse or neglect offense;
(2)
being debarred from contracting by any unit of the federal
government or any unit of a state government;
(3)
violating TRC contract provisions including failing to
perform according to the terms, conditions, and specifications or within the
time limit(s) specified in TRC contract, including, but not limited to, the
following:
(A)
failing to abide by applicable federal and state statutes,
such as those regarding persons with disabilities and those regarding civil
rights;
(B)
having a record of failure to perform or of unsatisfactory
performance according to the terms of one or more contracts or subcontracts,
if that failure or unsatisfactory performance has occurred within five years
preceding the determination to debar. Application of this subsection will
be made only for actions occurring after the effective date of these rules.
Failure to perform and unsatisfactory performance includes, but is not limited
to, the following:
(i)
failing to correct contract performance deficiencies after
receiving written notice about them from TRC or its authorized agents;
(ii)
failing to repay or make and follow through with arrangements
satisfactory to TRC to repay identified overpayments or other erroneous payments,
or assessed liquidated damages or penalties;
(iii)
failing to meet standards that are required for licensure
or certification, or that are required by state or federal law, TRC rules,
or TRC policy concerning TRC contractors;
(iv)
failing to execute amendments required by TRC;
(v)
billing for services or merchandise not provided to the
client by TRC;
(vi)
submitting cost reports containing costs not associated
with and/or not covered by the contract or TRC rules and instructions. Intent
to increase individual or statewide rates or fees by submission of unallowable
costs must be shown for a single cost report, but intent may be inferred when
a pattern of submitting cost reports with unallowable costs is shown;
(vii)
submitting a false report or misrepresentation which,
if used, may increase individual or statewide rates or fees;
(viii)
charging client or patient fees contrary to TRC rules
or policy;
(ix)
failing to notify and reimburse TRC or its agents for
services TRC paid for when the contractor received reimbursement from a liable
third party;
(x)
failing to disclose or make available, upon demand, to
TRC or its representatives (including appropriate federal and state agencies)
any records the contractor is required to maintain;
(xi)
failing to provide and maintain services within standards
required by statute, regulation, or contract; or
(xii)
violating the Human Resources Code provisions applicable
to the contract or any rule or regulation issued under the Code;
(4)
submitting an offer, bid, proposal, or application that
contains a false statement or misrepresentation or omits pertinent facts or
documents that are material to the procurement;
(5)
engaging in any abusive or neglectful practice that results
in or could result in death or injury to the clients served by the contractor;
or
(6)
knowingly and willfully using a debarred person or legal
entity as an employee, independent contractor, or agent to perform a contract
with TRC.
(b)
Individuals, parts of entities, and entities that have
been debarred may not:
(1)
receive a contract;
(2)
be allowed to retain a contract which has been awarded
before debarment;
(3)
bid or otherwise make offers to receive a contract or subcontract;
(4)
participate in TRC programs which do not require the provider
to sign a contract or agreement; or
(5)
either personally or through a clinic, group, corporation,
or other association bill to or receive payment from TRC for any services
or supplies provided by the debarred entity on or after the effective date
of the debarment. Additionally, TRC will not pay for any services ordered,
prescribed, or delivered by the debarred entity for TRC recipients after the
date of debarment. No costs associated with a debarred entity, including the
salary, fringe, overhead, payments to, or any other costs associated with
an employee, owner, officer, director, board member, independent contractor,
manager, or agent who was debarred may be included in a TRC cost report or
any other document which will be used to determine an individual payment rate,
a statewide payment rate, or a fee.
(c)
Debarment may be applied against an individual, an entire
legal entity, or a specified part of a legal entity.
§106.567.Causes for and Conditions of Suspension.
(a)
TRC may place a contractor's or potential contractor's
contractual rights in suspension whenever TRC finds that there is a reasonable
basis to believe that grounds for debarment exists. Suspension may be imposed
immediately following TRC's notification to a contractor or potential contractor.
In addition, suspension may be imposed on a potential contractor if he has
an outstanding indictment or TRC has information about an offense that is
grounds for indictment.
(b)
Conditions of Suspension.
(1)
TRC may withhold payments, in whole or in part, to the
affected contractor during the period of suspension.
(2)
TRC may refuse to accept a bid, offer, application, or
proposal from, or to award a contract to, the affected potential contractor
during the period of suspension.
(3)
TRC may cease referrals or additional clients to the suspended
entity.
(4)
If TRC determines that the underlying reasons for suspension
have been resolved in favor of the contractor, TRC must, if applicable:
(A)
pay the withheld payments for any services that may have
been provided during the suspension and which meet the terms of an existing
contract; and
(B)
resume contract payments.
(5)
If TRC determines that underlying reasons for the suspension
have not been resolved in favor of the contractor, TRC will institute debarment
proceedings.
(6)
Individuals and entities whose contractual rights have
been placed in suspension may not:
(A)
receive a contract; or
(B)
submit an offer, bid, application, or proposal for a contract.
(c)
A suspension may be applied against an individual, an entire
legal entity, or a specified part of a legal entity.
§106.569.Proof Required for Debarment or Suspension.
(a)
Causes identified in this title are established by proof
of pleading guilty or nolo contendere, or of the issuance of a deferred adjudication
of guilt. If an appeal results in a reversal, contractual rights must be restored
upon written request, unless another cause for their removal exists.
(b)
Causes identified in this title are based entirely upon
the other state or federal agency's official notice that the contractor's
or potential contractor's rights have been removed.
(c)
The existence of all other causes for debarment or suspension
must be established by a preponderance of the evidence.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State, on May 14, 2001.
TRD-200102688
Sylvia F. Hardman
Deputy Commissioner for Legal Services
Texas Rehabilitation Commission
Earliest possible date of adoption: June 24, 2001
For further information, please call: (512) 424-4050
40 TAC §§106.570, 106.571, 106.573, 106.575 106.577, 106.579, 106.581
The new sections are proposed under the Texas Human Resources
Code, Title 7, Chapter 111, §111.018 and §111.023, which provides
the Texas Rehabilitation Commission with the authority to promulgate rules
consistent with Title 7, Texas Human Resources Code.
No other statute, article, or code is affected by this proposal.
§106.570.Appeals.
(a)
Appeals based upon final decision letter.
(1)
General. After TRC has issued a final decision letter to
the contractor or grantee implementing an adverse action taken by TRC pursuant
to §106.467 of this title (relating to Adverse Actions), the contractor
or grantee, referred to herein as appellant, has the right to appeal. Except
as provided in subsection (b) of this section, a copy of the final decision
letter must be included with the appeal, and the appeal must be received by
TRC within 60 days after issuance of the final decision letter. Appeals and
requests for reconsideration under this section must be sent to TRC by certified
mail--return receipt requested.
(2)
Procedures. Appeals must be in writing and submitted to
the appropriate deputy commissioner. Written materials that the appellant
wishes to have considered may be submitted with the appeal. The appeal should
state whether the appellant requests a personal meeting to discuss the appeal,
and if the appellant requests, a meeting will be scheduled with a representative
of TRC. At the meeting, the appellant may be represented by a person of his
or her selection, the appellant will be provided with an opportunity to present
evidence and information to support his or her position, and the appellant
and TRC may agree to employ a mediator at TRC's expense. A written decision
will be provided to the appellant within 30 days after conclusion of the meeting,
or if no meeting is held, within 45 days after TRC receives the appeal, unless
the appropriate deputy commissioner extends the time.
(3)
Record. The record of an appeal shall consist of a copy
of the written appeal; a copy of the final decision letter described in paragraph
(1) of this subsection, or if no final decision letter was issued, a copy
of the appellant's request for final decision letter described in subsection
(b) of this section; a copy of the written decision issued by TRC described
in paragraph (2) of this subsection; and if applicable, a copy of any mediation
agreement that was executed by TRC and the appellant.
(4)
Request for reconsideration. After the decision on an appeal
is issued, the appellant may submit in writing a request for reconsideration.
Requests are to be directed to the Assistant Commissioner, Buyer Support Services,
and must be received by TRC within 20 days after the decision on the appeal
is issued. The request for reconsideration will be decided by or on behalf
of the TRC Commissioner. The decision will be based on the record of the appeal
described in paragraph (3) of this subsection, a summary prepared by TRC representative
of the information provided by the appellant and the evidence accepted by
TRC representative at the meeting described in paragraph (2) of this subsection,
any written material submitted by the appellant along with his or her request
for reconsideration, and TRC representative's response to the request for
reconsideration.
(A)
The request for reconsideration shall:
(i)
specifically point out any errors in the record,
(ii)
specify all relief requested, and
(iii)
state all reasons why the relief should be granted.
(B)
The TRC representative shall file his or her response to
the request for reconsideration not later than 20 days after TRC's receipt
of the request.
(C)
TRC shall issue a decision on the request for reconsideration
no later than 45 days after receipt of the request for reconsideration. The
decision may affirm, reverse or modify the final decision letter. The decision
on the request for reconsideration is the final decision of TRC. If TRC does
not rule on the request for reconsideration within 45 days, the written decision
on the appeal which is described in paragraph (2) of this subsection becomes
the final decision of TRC. TRC and/or his or her designee may extend any time
period by ten days upon written request of the appellant or TRC representative.
(b)
Obtaining a final decision letter. If the contractor or
grantee believes that an adverse action has been taken against him before
a final decision letter has been issued, the contractor or grantee may contact
the appropriate deputy commissioner in writing, describe the adverse action
which has been taken, and request a final decision letter. Requests for a
final decision letter must be submitted to TRC by certified mail--return receipt
requested. If TRC does not issue a final decision letter within 30 days after
receipt of the request by the deputy commissioner, the contractor or grantee
may, at his or her option, appeal within 60 days of receipt of the request
by the deputy commissioner. A copy of the request for a final decision letter,
along with a U.S. Postal Service or equivalent notice showing receipt of the
request by TRC, must be included with the appeal.
§106.571.Claim for Breach of Contract.
(a)
In accordance with Government Code, Chapter 2260, Subchapter
B, a contractor may make a claim against TRC for breach of a contract between
TRC and the contractor. TRC may assert a counterclaim against the contractor.
(b)
A contractor must provide written notice to TRC of a claim
for breach of contract not later than the 180th day after the date of the
event giving rise to the claim.
(c)
The notice must state with particularity:
(1)
the nature of the alleged breach;
(2)
the amount the contractor seeks as damages; and
(3)
the legal theory of recovery.
(d)
TRC must assert, in a writing delivered to the contractor,
any counterclaim not later than the 90th day after the date of notice under
this subsection. If TRC does not comply with this subsection it waives the
right to assert the counterclaim.
§106.573.Negotiation.
(a)
The Associate Commissioner for buyer Support Services shall
examine the claim and any counterclaim and negotiate with the contractor in
an effort to resolve them. Except as provided by subsection (b) of this section,
the negotiation must begin not later than the 60th day after the later of:
(1)
the date of termination of the contract;
(2)
the completion date in the original contract; or
(3)
the date the claim is received.
(b)
TRC is entitled to delay the beginning of negotiation until
after the 180th day after the date of the event giving rise to the claim.
§106.575.Partial Resolution of Claim.
(a)
If the negotiation under §106.573 of this title (relating
to Negotiation) results in the resolution of some disputed issues by agreement
or in a settlement, the parties shall reduce the agreement or settlement to
writing and each party shall sign the agreement or settlement.
(b)
A partial settlement or resolution of a claim does not
waive a party's rights under this chapter as to the parts of the claim that
are not resolved.
§106.577.Payment of Claim from Appropriated Funds.
TRC may pay a claim resolved in accordance with this subchapter only
from money appropriated to it for payment of contract claims or for payment
of the contract that is the subject of the claim. If money previously appropriated
for payment of contract claims or payment of the contract is insufficient
to pay the claim or settlement, the balance of the claim may be paid only
from money appropriated by the legislature for payment of the claim.
§106.579.Incomplete Resolution.
If a claim is not entirely resolved under §106.573 of this title
(relating to Negotiation) on or before the 270th day after the date the claim
is filed with TRC, unless the parties agree in writing to an extension of
time, the contractor may file a request for a hearing under Government Code,
Chapter 2260, Subchapter C.
§106.581.Mediation.
(a)
Before the 270th day after the date the claim is filed
with TRC and before the expiration of any extension of time under §106.579
of this title (relating to Incomplete Resolution), the parties may agree
to mediate the claim made under this subchapter.
(b)
Participation in mediation shall be voluntary on the part
of TRC and the contractor.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State, on May 14, 2001.
TRD-200102689
Sylvia F. Hardman
Deputy Commissioner for Legal Services
Texas Rehabilitation Commission
Earliest possible date of adoption: June 24, 2001
For further information, please call: (512) 424-4050
Subchapter D. PURCHASE OF GOODS AND SERVICES
40 TAC §106.107
The Texas Rehabilitation Commission (TRC) proposes new §106.107,
concerning purchase of goods and services by TRC. The change is being proposed
to bring TRC's purchasing rules into conformance with contracting policies
of the Health and Human Services Commission. The section adopts by reference
a rate schedule.
Charles E. Harrison, Jr., Deputy Commissioner for Financial Services, has
determined that for the first five-year period the section is in effect, there
will be no material fiscal implications for state or local government.
Mr. Harrison also has determined that for each year of the first five years
the section is in effect the public benefit anticipated as a result of enforcing
the section will be the agency's compliance with Chapter 111, Human Resources
Code. There will be no material effect on small businesses. There is no material
anticipated economic cost to persons who are required to comply with the section
as proposed.
Comments on the proposal may be submitted to Roger Darley, Assistant General
Counsel, Texas Rehabilitation Commission, 4900 North Lamar Boulevard, Suite
7300, Austin, Texas 78751.
A public hearing will be held prior to adoption of the rate schedule. The
hearing will be on June 23, 2001 in the TRC Public Hearing Room, First Floor,
4900 North Lamar Blvd., Austin, Texas 78751. The hearing will be conducted
in conjunction with the regular meeting of the TRC Board.
The new section is proposed under the Texas Human Resources Code,
Title 7, Chapter 111, §111.018 and §111.023, which provides the
Texas Rehabilitation Commission with the authority to promulgate rules consistent
with Title 7, Texas Human Resources Code.
No other statute, article, or code is affected by this proposal.
§106.107.Schedule of Rates.
Pursuant to Human Resources Code, §111.0552(b) and Texas Administrative
Code Title 40, §106.105(3), the Board of the Texas Rehabilitation Commission
adopts by reference the annual schedule rates the Commission will pay for
medical services, to be effective September 3, 2001. The schedule of rates
may be viewed or copies may be obtained by calling the Texas Rehabilitation
Commission at (512-424-4019) or visiting the Texas Rehabilitation Commission
at the Brown Heatly Building at 4900 North Lamar; Austin, Texas; 78751.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on May 14, 2001.
TRD-200102696
Sylvia F. Hardman
Deputy Commissioner for Legal Services
Texas Rehabilitation Commission
Earliest possible date of adoption: June 24, 2001
For further information, please call: (512) 424-4050
Chapter 159.
ADMINISTRATIVE RULES AND PROCEDURES
Subchapter D. CONTRACT DISPUTE RESOLUTION
40 TAC §§159.55 - 159.83
The Texas Commission for the Blind proposes new §159.55-159.83,
relating to procedures for the negotiation and mediation of certain breach
of contract claims asserted by contractors against the Commission pursuant
to Government Code, Chapter 2260. Section 2260.052(c) requires that units
of state government with rulemaking authority adopt rules to establish negotiation
and mediation provisions. These proposed rules have been modeled closely after
model rules provided to state agencies by the Office of the Attorney General
and the State Office of Administrative Hearings.
§159.55 states that the subchapter governs the negotiation and mediation
of claims of breach of contract asserted by a contractor against the Commission. §159.56
explains the types of actions not covered by the subchapter. §159.57
defines terms as they relate to this subchapter. §159.58 provides that
the procedures in the subchapter are prerequisites to filing suit under Civil
Practice & Remedies Code, Chapter 107 and Government Code, Chapter 2260. §159.59
advises that the Commission has not waived sovereign immunity to suit or to
liability. §159.60 sets out the requirements and procedures of the notice
of claim of breach of contract that the contractor must assert. §159.61
sets out the requirements and procedures of the counterclaim that the unit
of state government must assert. §159.62 covers the disclosure of information.
§§159.63-69 cover negotiation between parties, including a timetable
as it relates to negotiations between the contractor and the Commission, how
the parties may conduct the negotiation, the parties' settlement approval
procedures, the requirements of any resulting settlement agreement, and how
the costs of negotiations will be handled by the parties. In the event the
breach of contract claim is not resolved in its entirety §159.69 specifies
the process by which a contractor may seek resolution of the dispute by SOAH.
§§159.70-159.80 cover the option of mediation available to parties
to resolve a breach of contract claim, including a timetable, a method for
conducting mediation, qualifications and immunity of the mediator, and settlement
procedures. §159.81 provides that if mediation does not resolve the dispute
the contractor may request that the claim be referred to SOAH. §159.82
contains a discussion about other assisted negotiation processes open to the
parties when a dispute arises.
Alvin Miller, Chief Financial Officer, has determined that there will be
no foreseeable implications relating to cost or revenues of the state or local
governments as a result of enforcing or administering the rules.
Mr. Miller has also determined that for each year of the first five years
that the proposed rules are in effect, the benefit to the public will be the
more timely and efficient resolution of contract disputes between contractors
and the Commission. The legislature, by enacting Government Code Chapter 2260,
has determined that such process, with the potential to recover monetary damages
for proven contractual breaches, is of public benefit.
The proposed rules will have no adverse economic effect on small or large
businesses and/or persons that contract with the state. In the past, sovereign
immunity prevented breach of contract claims against the state and the only
process available to the public for resolution of such a claim was to seek
and obtain legislative consent to sue. Chapter 2260 and these proposed rules
will provide a process by which claims for breach of contract and counterclaims
can be asserted and resolved.
The negotiation provisions themselves will impose no economic cost to persons
required to comply with the proposed rules because they do not require the
use of any particular negotiation mode or method. The proposed rules require
only that the parties negotiate to resolve their dispute, and the mode or
method of negotiation can be as simple or as complex as the parties decide.
The proposed rules specify that absent an agreement to the contrary, the parties
are responsible for costs they individually incur in a negotiation or other
alternative dispute resolution process.
Similarly, the mediation provisions themselves will impose no economic
cost to persons required to comply with the proposed rules unless the parties
choose to mediate. If the parties do so, the rules specify that, absent an
agreement to the contrary, the parties will share the costs of the mediator
and each will be responsible for whatever additional costs they decide to
incur for items such as document reproduction, attorneys' fees, experts' fees
and consultants' fees.
Questions about the content of this proposal may be directed to Jean Crecelius
at (512) 377-0611, and written comments on the proposal may be submitted to
Policy and Rules Coordinator, P. O. Box 12866, Austin, Texas 78711, within
30 days from the date of this publication.
The rule is proposed under the authority of Human Resources Code,
Title 5, Chapter 91, §91.022, which authorizes the agency to adopt rules
prescribing the policies and procedures followed by the commission in the
administration of its programs.
The proposed new rules also affect Texas Government Code, Chapter 2260.
§159.55.Purpose.
This purpose of this subchapter is to establish rules for the efficient
resolution of contract disputes between contractors and the Commission pursuant
to Government Code, Chapter 2260, when efforts to resolve a disagreement concerning
the contract in the ordinary course of contract administration under less
formal procedures specified in the parties' contract have not been successful.
§159.56.Applicability.
(a)
This subchapter does not apply to an action by the Commission
for which a contractor is entitled to a specific remedy pursuant to state
or federal constitution or statute.
(b)
This subchapter does not apply to a contract action proposed
or taken by the Commission for which a contractor receiving Medicaid funds
under that contract is entitled by state statute or rule to a hearing conducted
in accordance with Government Code, Chapter 2001.
(c)
This subchapter does not apply to contracts:
(1)
between the Commission and the federal government or its
agencies, another state or another nation;
(2)
between the Commission and one or more other units of state
government;
(3)
between the Commission and a local governmental body, or
a political subdivision of another state;
(4)
between a subcontractor and a contractor;
(5)
subject to §201.112 of the Transportation Code;
(6)
within the exclusive jurisdiction of state or local regulatory
bodies;
(7)
within the exclusive jurisdiction of federal courts or
regulatory bodies; or
(8)
that are solely and entirely funded by federal grant monies
other than for a project defined in §159.57(13) of this title, relating
to definitions.
§159.57.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meaning, unless the context clearly indicates otherwise:
(1)
Executive director--The chief administrative officer responsible
for the day-to-day operations of the Texas Commission for the Blind.
(2)
Claim--A demand for damages by the contractor based upon
the Commission's alleged breach of the contract.
(3)
Commission--Texas Commission for the Blind.
(4)
Contract--A written contract between the Commission and
a contractor by the terms of which the contractor agrees either:
(A)
to provide goods or services, by sale or lease, to or for
the Commission; or
(B)
to perform a project as defined by Government Code, §2166.001.
(5)
Contractor--An independent contractor who has entered into
a contract directly with the Commission. The term does not include:
(A)
the contractor's subcontractor, officer, employee, agent
or other person furnishing goods or services to a contractor;
(B)
an employee of the Commission; or
(C)
a student at an institution of higher education.
(6)
Counterclaim--A demand by the Commission based upon the
contractor's claim.
(7)
Day--A calendar day. If an act is required to occur on
a day falling on a Saturday, Sunday, or holiday, the first working day that
is not one of these days should be counted as the required day for purpose
of this act.
(8)
Event--An act or omission or a series of acts or omissions
giving rise to a claim, including, by way of illustration, but not limited
to:
(A)
for goods or services:
(i)
the failure of the Commission to timely pay for goods and
services;
(ii)
the failure to pay the balance due and owing on the contract
price, including orders for additional work, after deducting any amount owed
the Commission for work not performed under the contract or in substantial
compliance with the contract terms;
(iii)
the suspension, cancellation, or termination of the contract;
(iv)
final rejection of the goods or services tendered by the
contractor, in whole or in part;
(v)
repudiation of the entire contract prior to or at the outset
of performance by the contractor;
(vi)
withholding liquidated damages from final payment to the
contractor.
(B)
in the context of a project:
(i)
the failure to timely pay the unpaid balance of the contract
price following final acceptance of the project;
(ii)
the failure to make timely progress payments required
by the contract;
(iii)
the failure to pay the balance due and owing on the contract
price, including orders for additional work, after deducting any amount owed
the Commission for work not performed under the contract or in substantial
compliance with the contract terms;
(iv)
the failure to grant time extensions to which the contractor
is entitled under the terms of the contract;
(v)
the failure to compensate the contractor for occurrences
for which the contract provides a remedy;
(vi)
suspension, cancellation or termination of the contract;
(vii)
rejection by the Commission, in whole or in part, of
the "work," as defined by the contract, tendered by the contractor;
(viii)
repudiation of the entire contract prior to or at the
outset of performance by the contractor;
(ix)
withholding liquidated damages from final payment to the
contractor;
(x)
refusal, in whole or in part, of a written request made
by the contractor in strict accordance with the contract to adjust the contract
price, the contract time, or the scope of work.
(9)
Goods--Supplies, materials or equipment.
(10)
Mediation--A consensual process in which an impartial
third party, the mediator, facilitates communication between the parties to
promote reconciliation, settlement, or understanding among them.
(11)
Negotiation--A consensual bargaining process in which
the parties attempt to resolve a claim and counterclaim.
(12)
Parties--The commission and contractor that have entered
into a contract in connection with which a claim of breach of contract has
been filed under this subchapter.
(13)
Project--As defined in Government Code §2166.001,
a building construction project that is financed wholly or partly by a specific
appropriation, bond issue or federal money, including the construction of
the following:
(A)
a building, structure, or appurtenant facility or utility,
including the acquisition and installation of original equipment and original
furnishing; and
(B)
an addition to, or alteration, modification, rehabilitation
or repair of an existing building, structure, or appurtenant facility or utility
(14)
Services--The furnishing of skilled or unskilled labor
or consulting or professional work, or a combination thereof, excluding the
labor of an employee of the commission.
§159.58.Prerequisites to Suit.
The procedures contained in this subchapter are exclusive and required
prerequisites to suit under the Civil Practice & Remedies Code, Chapter
107, and the Government Code, Chapter 2260.
§159.59.Sovereign Immunity.
This subchapter does not waive the commission's sovereign immunity
to suit or liability.
§159.60.Contractor Claim.
(a)
A contractor asserting a claim of breach of contract under
the Government Code, Chapter 2260, shall file notice of the claim as provided
by this section.
(b)
The notice of claim shall:
(1)
be in writing and signed by the contractor or the contractor's
authorized representative;
(2)
be delivered by hand, certified mail return receipt requested,
or other verifiable delivery service, to the officer of the Commission designated
in the contract to receive a notice of claim of breach of contract under the
Government Code, Chapter 2260; if no person is designated in the contract,
the notice shall be delivered to the Commission's executive director, and
(3)
state in detail:
(A)
the nature of the alleged breach of contract, including
the date of the event that the contractor asserts as the basis of the claim
and each contractual provision allegedly breached;
(B)
a description of damages that resulted from the alleged
breach, including the amount and method used to calculate those damages; and
(C)
the legal theory of recovery, i.e., breach of contract,
including the causal relationship between the alleged breach and the damages
claimed.
(c)
In addition to the mandatory contents of the notice of
claim as required by subsection (b) of this section, the contractor may submit
supporting documentation or other tangible evidence to facilitate the commission's
evaluation of the contractor's claim.
(d)
The notice of claim shall be delivered no later than 180
days after the date of the event that the contractor asserts as the basis
of the claim.
§159.61.Agency Counterclaim.
(a)
If asserting a counterclaim under the Government Code,
Chapter 2260, the Commission shall file notice of the counterclaim as provided
by this section.
(b)
The notice of counterclaim shall:
(1)
be in writing;
(2)
be delivered by hand, certified mail return receipt requested
or other verifiable delivery service to the contractor or representative of
the contractor who signed the notice of claim of breach of contract; and
(3)
state in detail:
(A)
the nature of the counterclaim;
(B)
a description of damages or offsets sought, including the
amount and method used to calculate those damages or offsets; and
(C)
the legal theory supporting the counterclaim.
(c)
In addition to the mandatory contents of the notice of
counterclaim required by subsection (b) of this section, the Commission may
submit supporting documentation or other tangible evidence to facilitate the
contractor's evaluation of the Commission's counterclaim.
(d)
The notice of counterclaim shall be delivered to the contractor
no later than 90 days after the Commission's receipt of the contractor's notice
of claim.
(e)
Nothing herein precludes the Commission from initiating
a lawsuit for damages against the contractor in a court of competent jurisdiction.
§159.62.Request for Voluntary Disclosure of Additional Information.
(a)
Upon the filing of a claim or counterclaim, parties may
request to review and copy information in the possession or custody or subject
to the control of the other party that pertains to the contract claimed to
have been breached, including, without limitation:
(1)
accounting records;
(2)
correspondence, including correspondence between the Commission
and outside consultants it utilized in preparing its bid solicitation or any
part thereof or in administering the contract, and correspondence between
the contractor and its subcontractors, materialmen, and vendors;
(3)
schedules;
(4)
the parties' internal memoranda;
(5)
documents created by the contractor in preparing its offer
to the Commission and documents created by the Commission in analyzing the
offers it received in response to a solicitation.
(b)
Subsection (a) of this section applies to all information
in the parties' possession regardless of the manner in which it is recorded,
including, without limitation, paper and electronic media.
(c)
The contractor and the Commission may seek additional information
directly from third parties, including, without limitation, the Commission's
third-party consultants and the contractor's subcontractors.
(d)
Nothing in this section requires any party to disclose
requested information or any matter that is privileged under Texas and federal
laws.
(e)
Material submitted pursuant to this subsection and claimed
to be confidential by the contractor shall be handled pursuant to the requirements
of the Public Information Act.
§159.63.Negotiation.
The parties shall negotiate in accordance with the timetable set forth
in subsection (b) of this section to attempt to resolve all claims and counterclaims.
No party is obligated to settle with the other party as a result of the negotiation.
§159.64.Negotiation timetable.
(a)
Following receipt of a contractor's notice of claim, the
executive director or other designated representative shall review the contractor's
claim(s) and the Commission's counterclaim(s), if any, and initiate negotiations
with the contractor to attempt to resolve the claim(s) and counterclaim(s).
Subject to subsection (c) of this section, the parties shall begin negotiations
within a reasonable period, not to exceed 60 days following the later of:
(1)
the date of termination of the contract;
(2)
the completion date, or substantial completion date in
the case of construction projects, in the original contract; or
(3)
the date the Commission receives the contractor's notice
of claim.
(b)
Delays. The Commission may delay negotiations until after
the 180th day after the date of the event giving rise to the claim of breach
of contract by:
(1)
delivering written notice to the contractor that the commencement
of negotiations will be delayed; and
(2)
delivering written notice to the contractor when the Commission
is ready to begin negotiations.
(c)
Agreed schedule. The parties may conduct negotiations according
to an agreed schedule as long as they begin negotiations no later than the
deadlines set forth in subsections (b) or (c) of this section, whichever is
applicable.
(d)
Completion of negotiations. Subject to subsection (f) of
this section, the parties shall complete the negotiations that are required
by this subchapter as a prerequisite to a contractor's request for contested
case hearing no later than 270 days after the Commission receives the contractor's
notice of claim.
(e)
Extensions. The parties may agree in writing to extend
the time for negotiations on or before the 270th day after the Commission
receives the contractor's notice of claim. The agreement shall be signed by
representatives of the parties with authority to bind each respective party
and shall provide for the extension of the statutory negotiation period until
a date certain. The parties may enter into a series of written extension agreements
that comply with the requirements of this section.
(f)
Schedule for requesting contested case hearing. The contractor
may request a contested case hearing before the State Office of Administrative
Hearings (SOAH) pursuant to §159.69 of this title (relating to Request
for Contested Case Hearing) after the 270th day after the Commission receives
the contractor's notice of claim, or the expiration of any extension agreed
to under subsection (f) of this section.
(g)
Schedule for agreement to mediate. The parties may agree
to mediate the dispute at any time before the 270th day after the Commission
receives the contractor's notice of claim or before the expiration of any
extension agreed to by the parties pursuant to subsection (f) of this section.
The mediation shall be governed by §§159.70-159.80 of this chapter.
(h)
Nothing in this section is intended to prevent the parties
from agreeing to commence negotiations earlier than the deadlines established
in subsections (b) and (c) of this section, or from continuing or resuming
negotiations after the contractor requests a contested case hearing before
SOAH.
§159.65.Conduct of Negotiation.
(a)
A negotiation under this subchapter may be conducted by
any method, technique, or procedure authorized under the contract or agreed
upon by the parties, including, without limitation, negotiation in person,
by telephone, by correspondence, by video conference, or by any other method
that permits the parties to identify their respective positions, discuss their
respective differences, confer with their respective advisers, exchange offers
of settlement, and settle.
(b)
The parties may conduct negotiations with the assistance
of one or more neutral third parties. If the parties choose to mediate their
dispute, the mediation shall be conducted in accordance with §§159.70-159.80
of this title. Parties may choose an assisted negotiation process other than
mediation, including without limitation, processes such as those described
in §§159.82-159.83 of this title.
(c)
To facilitate the meaningful evaluation and negotiation
of the claim(s) and any counterclaim(s), the parties may exchange relevant
documents that support their respective claims, defenses, counterclaims or
positions.
(d)
Material submitted pursuant to this subsection and claimed
to be confidential by the contractor shall be handled pursuant to the requirements
of the Public Information Act.
§159.66.Settlement Approval Procedures.
The parties' settlement approval procedures shall be disclosed prior
to, or at the beginning of, negotiations. To the extent possible, the parties
shall select negotiators who are knowledgeable about the subject matter of
the dispute, who are in a position to reach agreement, and who can credibly
recommend approval of an agreement.
§159.67.Settlement Agreement after Negotiation.
(a)
A settlement agreement may resolve an entire claim or any
designated and severable portion of a claim.
(b)
To be enforceable, a settlement agreement must be in writing
and signed by representatives of the contractor and the commission who have
authority to bind each respective party.
(c)
A partial settlement does not waive a parties' rights under
the Government Code, Chapter 2260, as to the parts of the claims or counterclaims
that are not resolved.
§159.68.Costs of Negotiation.
Unless the parties agree otherwise, each party shall be responsible
for its own costs incurred in connection with a negotiation, including, without
limitation, the costs of attorney's fees, consultant's fees and expert's fees.
§159.69.Request for Contested Case Hearing.
(a)
If a claim for breach of contract is not resolved in its
entirety through negotiation, mediation or other assisted negotiation process
in accordance with this chapter on or before the 270th day after the Commission
receives the notice of claim, or after the expiration of any extension agreed
to by the parties pursuant to §159.65(f) of this title (relating to Negotiated
Timetable), the contractor may file a request with the Commission for a contested
case hearing before SOAH.
(b)
A request for a contested case hearing shall state the
legal and factual basis for the claim, and shall be delivered to the executive
director or other officer designated in the contract to receive notice within
a reasonable time after the 270th day or the expiration of any written extension
agreed to pursuant to §159.65(f) of this title (relating to Negotiated
Timetable).
(c)
The Commission shall forward the contractor's request for
contested case hearing to SOAH within a reasonable period of time, not to
exceed thirty days after receipt of the request.
(d)
The parties may agree to submit the case to SOAH before
the 270th day after the notice of claim is received by the Commission if they
have achieved a partial resolution of the claim or if an impasse has been
reached in the negotiations and proceeding to a contested case hearing would
serve the interests of justice.
§159.70.Option to Mediate.
(a)
The contractor and Commission may agree to mediate the
dispute at any time before the 270th day after the Commission receives a notice
of claim of breach of contract, or before the expiration of any extension
agreed to by the parties in writing.
(b)
The mediation shall be governed by rules contained in this
subchapter.
§159.71.Mediation Timetable.
A contractor and the Commission may mediate the dispute even after
the case has been referred to SOAH for a contested case. SOAH may also refer
a contested case for mediation pursuant to its own rules and guidelines, whether
or not the parties have previously attempted mediation.
§159.72.Request for Referral.
If mediation does not resolve all issues raised by the claim, the contractor
may request that the claim be referred to SOAH by the Commission. Nothing
in these rules prohibits the contractor and the Commission from mediating
their dispute after the case has been referred for contested case hearing,
subject to the rules of SOAH.
§159.73.Conduct of Mediation.
(a)
A mediator may not impose his or her own judgment on the
issues for that of the parties. The mediator must be acceptable to both parties.
(b)
The mediation is subject to the provisions of the Governmental
Dispute Resolution Act, Government Code, Chapter 2009.
(c)
To facilitate a meaningful opportunity for settlement,
the parties shall select, to the extent possible, representatives who are
knowledgeable about the dispute, who are in a position to reach agreement,
or who can credibly recommend approval of an agreement.
§159.74.Agreement to Mediate.
(a)
Parties may agree to use mediation as an option to resolve
a breach of contract claim at the time they enter into the contract and include
a contractual provision to do so. The parties may mediate a breach of contract
claim even absent a contractual provision to do so if both parties agree.
(b)
Any agreement to mediate shall include consideration of
the following factors:
(1)
The source of the mediator. Potential sources of mediators
include governmental officers or employees who are qualified as mediators
under Section 154.052, Civil Practice and Remedies Code, private mediators,
SOAH, the Center for Public Policy Dispute Resolution at The University of
Texas School of Law, an alternative dispute resolution system created under
Chapter 152, Civil Practice and Remedies Code, or another state or federal
agency or through a pooling agreement with several state agencies. Before
naming a mediator source in a contract, the parties should contact the mediator
source to be sure that it is willing to serve in that capacity. In selecting
a mediator, the parties should use the qualifications set forth in §159.75
of this title, pertaining to qualifications and immunity of mediator.
(2)
The time period for the mediation. The parties should allow
enough time in which to make arrangements with the mediator and attending
parties to schedule the mediation, to attend and participate in the mediation,
and to complete any settlement approval procedures necessary to achieve final
settlement. While this time frame can vary according to the needs and schedules
of the mediator and parties, it is important that the parties allow adequate
time for the process.
(3)
The location of the mediation.
(4)
Allocation of costs of the mediator.
(5)
The identification of representatives who will attend the
mediation on behalf of the parties, if possible, by name or position within
the Commission or contracting entity.
(6)
The settlement approval process in the event the parties
reach agreement at the mediation.
§159.75.Qualifications and Immunity of the Mediator.
(a)
The mediator shall possess the qualifications required
under Civil Practice and Remedies Code, §154.052, be subject to the standards
and duties prescribed by Civil Practice and Remedies Code, §154.053,
and have the qualified immunity prescribed by Civil Practice and Remedies
Code, §154.055, if applicable.
(b)
The parties should decide whether, and to what extent,
knowledge of the subject matter and experience in mediation would be advisable
for the mediator.
(c)
The parties should obtain from the prospective mediator
the ethical standards that will govern the mediation.
§159.76.Confidentiality of Mediation and Final Settlement Agreement.
(a)
A mediation conducted under this section is confidential
in accordance with Government Code, §2009.054.
(b)
The confidentiality of a final settlement agreement to
which the Commission is a signatory that is reached as a result of the mediation
is governed by Government Code, Chapter 552.
§159.77.Costs of Mediation.
Unless the contractor and Commission agree otherwise, each party shall
be responsible for its own costs incurred in connection with the mediation,
including costs of document reproduction for documents requested by such party,
attorney's fees, and consultant or expert fees. The costs of the mediation
process itself shall be divided equally between the parties.
§159.78.Settlement Approval Procedures.
The parties' settlement approval procedures shall be disclosed by the
parties prior to the mediation. To the extent possible, the parties shall
select representatives who are knowledgeable about the subject matter of the
dispute, who are in a position to reach agreement, and who can credibly recommend
approval of an agreement.
§159.79.Initial Settlement Agreement.
Any settlement agreement reach during the mediation shall be signed
by the representatives of the contractor and the Commission, and shall describe
any procedures required to be followed by the parties in connection with final
approval of the agreement.
§159.80.Final Settlement Agreement.
(a)
A final settlement agreement reached during or as a result
of mediation that resolves an entire claim or any designated and severable
portion of a claim shall be in writing and signed by representatives of the
contractor and the Commission who have authority to bind each respective party.
(b)
If the settlement agreement does not resolve all issues
raised by the claim and counterclaim, the agreement shall identify the issues
that are not resolved.
(c)
A partial settlement does not waive a contractor's rights
under the Government Code, Chapter 2260, as to the parts of the claim that
are not resolved.
§159.81.Referral to the State Office of Administrative Hearings.
If mediation does not resolve all issues raised by the claim, the contractor
may request that the claim be referred to SOAH by the Commission. Nothing
in these rules prohibits the contractor and Commission from mediating their
dispute after the case has been referred for contested case hearing, subject
to the rules of SOAH.
§159.82.Other Assisted Negotiation Processes.
(a)
Parties to a contract dispute under Government Code, Chapter
2260 may agree, either contractually or when a dispute arises, to use assisted
negotiation (alternative dispute resolution) processes in addition to negotiation
and mediation to resolve their dispute.
(b)
The following factors may help parties decide whether one
or more assisted negotiation processes could help resolve their dispute:
(1)
The parties recognize the benefits of an agreed resolution
of the dispute;
(2)
The expense of proceeding to contested case hearing at
SOAH is substantial and might outweigh any potential recovery;
(3)
The parties want an expedited resolution;
(4)
The ultimate outcome is uncertain;
(5)
There exists factual or technical complexity or uncertainty
that would benefit from expertise of a third-party expert for technical assistance
or fact-finding;
(6)
The parties are having substantial difficulty communicating
effectively;
(7)
A mediator third party could facilitate the parties' realistic
evaluation of their respective cases;
(8)
There is an ongoing relationship that exists between parties;
(9)
The parties want to retain control over the outcome;
(10)
There is a need to develop creative alternatives to resolve
the dispute;
(11)
There is a need for flexibility in shaping relief;
(12)
The other side has an unrealistic view of the merits of
their case;
(13)
The parties (or aggrieved persons) need to hear an evaluation
of the case from someone other than their lawyers.
§159.83.Methods of Other Assisted Negotiation and Mediation Processes.
Any of the following methods, or a combination of these methods, or
any assisted negotiation process agreed to by the parties, may be used in
seeking resolution of disputes or other controversy arising under Government
Code, Chapter 2260. If the parties agree to use an assisted negotiation procedure,
they shall agree in writing to a detailed description of the process prior
to engaging in the process.
(1)
Mediation, as set forth in this subchapter.
(2)
Early evaluation by a third-party neutral, which is a confidential
conference during which the parties and their counsel present the factual
and legal bases of their claim and receive a nonbinding assessment by an experienced
neutral with subject-matter expertise or with significant experience in the
substantive area of law involved in the dispute. After summary presentations,
the third-party neutral identifies areas of agreement for possible stipulations,
assesses the strengths and weaknesses of each party's position, and estimates,
if possible the likelihood of liability and the dollar range of damages that
appear reasonable to him or her. This is a less complicated procedure than
the mini-trial described in paragraph (a)(4) of this section. It may be appropriate
for only some issues in dispute, such as where there are clear-cut differences
over the appropriate amount of damages. This process may be helpful when:
(A)
the parties agree that the dispute can be settled;
(B)
the dispute involves specific legal issues;
(C)
the parties disagree on the amount of damages;
(D)
the opposition has an unrealistic view of the dispute;
or
(E)
the neutral is a recognized expert in the subject area
or area of law involved.
(3)
Neutral fact-finding by an expert, in which a neutral third-party
expert studies a particular issue and reports findings on that issue. The
process usually occurs after most discovery in the dispute has been completed
and the significance of particular technical or scientific issues is apparent.
The parties may agree in writing that the fact-finding will be binding on
them in later proceedings (and entered into as a stipulation in the dispute
if the matter proceeds to contested case hearing), or that it will be advisory
in nature, to be used only in further settlement discussions between representatives
of the parties. This process may be particularly helpful when:
(A)
Factual issues requiring expert testimony may be dispositive
of liability or damage issues;
(B)
The use of a neutral is cost effective;
(C)
The neutral's findings could narrow factual issues for
contested case hearing.
(4)
Mini-trial, which is generally a summary proceeding before
a representative of upper management from each party, with authority to settle,
and a third-party neutral selected by agreement of the parties.
(A)
A mini-trial is usually divided into three phases: a limited
information exchange phase, the actual hearing, and post-hearing settlement
discussions.
(B)
No written or oral statement made in the proceeding may
be used as evidence or an admission in any other proceeding.
(C)
The information exchange stage should be brief but it must
be sufficient for each party to understand and appreciate the key issues involved
in the case. At a minimum, parties should exchange key exhibits, introductory
statements, and a summary of witness's testimony.
(D)
At the hearing, representatives of the parties present
a summary of the anticipated evidence and any legal issues that must be decided
before the case can be resolved. The third-party neutral presides over the
presentation and may question witnesses and counsel, as well as comment on
the arguments and evidence. Each party may agree to put on abbreviated direct
and cross-examination testimony. The hearing generally takes no longer than
1-2 days.
(E)
Settlement discussions, facilitated by the third-party
neutral, take place after the hearing. The parties may ask the neutral to
formally weigh up the evidence and arguments and give an advisory opinion
as to the issues in the case. If the parties cannot reach an agreed resolution
to the dispute, either side may declare the mini-trial terminated and proceed
to resolve the dispute by other means.
(F)
Mini-trials may be appropriate when:
(i)
The dispute is at a stage where substantial costs can be
saved by a resolution based on limited information gathering;
(ii)
The matter justifies the senior executive time required
to complete the process;
(iii)
The issues involved include highly technical mixed questions
of law and fact;
(iv)
The matter involves trade secrets or other confidential
or proprietary information; or
(v)
The parties seek to narrow the large number of issues in
dispute.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed with the Office of
the Secretary of State, on May 7, 2001.
TRD-200102571
Terrell I. Murphy
Executive Director
Texas Commission for the Blind
Earliest possible date of adoption: June 24, 2001
For further information, please call: (512) 377-0611
Subchapter E. CONSUMER PARTICIPATION IN COST OF SERVICES
40 TAC §163.61
The Texas Commission for the Blind proposes an amendment
to §163.61, concerning the scope of Subchapter E, Consumer Participation
in Cost of Services. The amendment exempts personal assistance services from
consumer participation and modifies the language on exemption of reader and
interpreter services. The amendments are required as a result of revised federal
regulations.
Alvin Miller, Chief Financial Officer, has determined that there will be
no foreseeable implications relating to cost or revenues of the state or local
governments as a result of enforcing or administering the amended rule.
Mr. Miller has also determined that for each year of the first five years
the rules are in effect the anticipated public benefits will be an increase
in the services in which consumer participation is not required. There will
be no economic cost to small businesses or individuals as a result of the
rule.
Questions about the content of this proposal may be directed to Jean Crecelius
at (512) 377-0611, and written comments on the proposal may be submitted to
Policy and Rules Coordinator, P. O. Box 12866, Austin, Texas 78711, within
30 days from the date of this publication.
The rule is proposed under the authority of Human Resources Code,
Title 5, Chapter 91, §91.022, which authorizes the agency to establish
and maintain, by rule, guidelines for the delivery of services by the Commission
consistent with state and federal law.
The proposal affects no other statutes.
§163.61.Scope of Subchapter.
(a)
In addition to the exception noted in subsection
(b) of this section, all
[
(1)
assessment for determining eligibility and priority for
services, except for vocational rehabilitation services other than those of
a diagnostic nature provided under an extended evaluation;
(2)
assessment for determining vocational rehabilitation needs;
(3)
vocational rehabilitation counseling, guidance, and referral
services by commission staff;
(4)
employment assistance services by commission staff;
(5)
training;
(6)
vocational rehabilitation teacher services (including consumable
supplies);
(7)
any auxiliary aid or service (e.g., interpreter services,
reader services) that an individual with a disability needs in order to participate
in the VR program; or
[
(8)
orientation and mobility services;
(9)
tuition and fees;
(10)
assistive technology devices and other necessary equipment;
[
(11)
personal assistance services;
(12)
[
(b)
Individuals receiving Social
Security benefits under Titles II or XVI of the Social Security Act are exempt
from this subsection.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on May 7, 2001.
TRD-200102572
Terrell I. Murphy
Executive Director
Texas Commission for the Blind
Earliest possible date of adoption: June 24, 2001
For further information, please call: (512) 377-0611
Chapter 362.
DEFINITIONS
40 TAC §362.1
The Texas Board of Occupational Therapy Examiners proposes
an amendment to §362.1, concerning Definitions. The amendment will delete
definitions which have been moved to the Supervision Chapter, and add definitions
for Non-Licensed Personnel, Occupational Therapy Practitioners, and delete
a phrase in the Temporary License definition which is not consistent with
the OT Practice Act.
John P. Maline, Executive Director of the Executive Council of Physical
Therapy and Occupational Therapy Examiners, has determined that for the first
five-year period the rule is in effect there will be no fiscal implications
for state or local government as a result of enforcing or administering the
rule.
Mr. Maline also has determined that for each year of the first five years
the rule is in effect the public benefit anticipated as a result of enforcing
the rule will be clarification of terms used in the OT rules. There will be
no effect on small businesses. There are no anticipated economic costs to
persons who are required to comply with the rule as proposed.
Comments on the proposed rule may be submitted to Augusta Gelfand, OT Coordinator,
Texas Board of Occupational Therapy Examiners, 333 Guadalupe, Suite 2-510,
Austin, Texas, 78701, (512) 305-6900, augusta.gelfand@mail.capnet.state.tx.us.
The amendment is proposed under the Occupational Therapy Practice
Act, Title 3, Subchapter H, Chapter 456, Occupations Code, which provides
the Texas Board of Occupational Therapy Examiners with the authority to adopt
rules consistent with this Act to carry out its duties in administering this
Act.
Title 3, Subchapter H, Chapter 454 of the Occupations Code is affected
by this amended section.
§362.1.Definitions.
The following words, terms, and phrases, when used in this part, shall
have the following meaning, unless the context clearly indicates otherwise.
(1) - (7)
(No change.)
[(8)
Close Personal Supervision--Implies direct,
on-site contact whereby the supervising OTR, LOT, COTA or LOTA is able to
respond immediately to the needs of the patient.]
(8)
[
(9)
[
(10)
[
(11)
[
[(13)
Continuing Supervision, OT--Includes,
at a minimum, the following:]
[(A)
Frequent communication between the supervising OTR or
LOT and the temporary licensee by telephone, written report or conference,
including the review of progress of patients/clients assigned to the OT.]
[(B)
Face-to-face encounters twice a month where the OTR or
LOT directly observes the temporary licensee providing OT services to one
or more patients/clients.]
[(14)
Continuing Supervision, OTA--Includes,
at a minimum, the following:]
[(A)
Frequent communication between the supervising OTR or
LOT and the temporary licensee by telephone, written report or conference,
including the review of progress of patients/clients assigned to the OTA.]
[(B)
Face-to-face encounters twice a month where the OTR or
LOT directly observes the temporary licensee providing OT services to one
or more patients/clients.]
[(C)
Sixteen hours of supervision per month must be documented
for a full-time OTA. A part-time OTA may prorate the documented supervision,
but shall document no less than eight hours per month.]
(12)
[
(13)
[
(14)
[
(15)
[
(16)
[
(17)
[
(18)
[
(19)
[
[(23)
General Supervision--Includes, at a
minimum, the following:]
[(A)
Frequent communication between the supervising OTR or
LOT and the regular or provisional COTA or LOTA by telephone, written report
or conference, including the review of progress of patients/clients assigned
to the COTA or LOTA.]
[(B)
Eight hours of supervision per month must be documented
for a full-time COTA or LOTA. Twenty-five percent of the required documented
supervision time must consist of face-to-face encounters where the OTR or
LOT directly observes the COTA or LOTA providing OT services to one or more
patients/clients.]
[(C)
A part-time COTA or LOTA may prorate the documented supervision.]
(20)
[
(21)
[
(22)
[
(23)
[
(24)
[
(25)
[
(26)
[
(27)
[
(28)
[
(29)
[
(30)
Non-licensed Personnel--OT Aide or OT
Orderly or other person not licensed by this board who provides support services
to occupational therapists and occupational therapy assistants, and whose
activities require on-the-job training and close personal supervision.
(31)
[
(32)
[
(33)
[
(34)
[
(A)
The evaluation/assessment, treatment and education of or
consultation with the individual, family or other persons;
(B)
interventions directed toward developing, improving or
restoring daily living skills, work readiness or work performance, play skills
or leisure capacities;
(C)
intervention methodologies to develop restore or maintain
sensorimotor, oral-motor, perceptual or neuromuscular functioning; joint range
of motion; emotional, motivational, cognitive or psychosocial components of
performance.
(35)
[
(36)
[
(37)
Occupational Therapy Practitioners--Occupational
Therapists and Occupational Therapy Assistants licensed by this board.
[(40)
OT Aide or OT Orderly--A person who
aids in the practice of occupational therapy and whose activities require
on-the-job training and close personal supervision by an OTR, LOT, COTA or
LOTA.]
(38)
[
(39)
[
(40)
[
(41)
[
(42)
[
(43)
[
(44)
Supervision--See Chapter 373 of this
title (relating to Supervision).
(45)
[
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on May 10, 2001.
TRD-200102631
John Maline
Executive Director
Texas Board of Occupational Therapy Examiners
Earliest possible date of adoption: June 24, 2001
For further information, please call: (512) 305-6900
40 TAC §§364.1 - 364.4
The Texas Board of Occupational Therapy Examiners proposes
amendments to §§364.1 - 364.4 concerning Requirements for Licensure.
The amendments will delete sponsorship requirements for Provisional license,
outline re-exam procedures, and more clearly defines limits on applications.
John P. Maline, Executive Director of the Executive Council of Physical
Therapy and Occupational Therapy Examiners, has determined that for the first
five-year period the rules are in effect there will be no fiscal implications
for state or local government as a result of enforcing or administering the
rules.
Mr. Maline also has determined that for each year of the first five years
the rules are in effect the public benefit anticipated as a result of enforcing
the rules will be clarification of re-examination procedures, remove requirements
for the Provision license and explain the time frames for applications. There
will be no effect on small businesses. There are no anticipated economic costs
to persons who are required to comply with the rules as proposed.
Comments on the proposed rules may be submitted to Augusta Gelfand, OT
Coordinator, Texas Board of Occupational Therapy Examiners, 333 Guadalupe,
Suite 2-510, Austin, Texas, 78701, (512) 305-6900, augusta.gelfand@mail.capnet.state.tx.us.
The amendments are proposed under the Occupational Therapy Practice
Act, Title 3, Subchapter H, Chapter 456, Occupations Code, which provides
the Texas Board of Occupational Therapy Examiners with the authority to adopt
rules consistent with this Act to carry out its duties in administering this
Act.
Title 3, Subchapter H, Chapter 454 of the Occupations Code is affected
by the amended sections.
§364.1.Requirements for Licensure.
(a) - (h)
(No change.)
(i)
The first regular license is valid from the date of issuance
until the last day of the applicant's next birth month. If the applicant's
birth month is within 90 days after the license is issued, the license will
be valid until the last day of the birth month in the following year. An initial
regular
license will be valid no less than
3
[
§364.2.Initial License by Examination.
(a)
An Applicant applying for license by examination must
(1) - (2)
(No change.)
(3)
Application for license must be received
no later than two years following date of exam.
(b)
(No change.)
(c)
An applicant who fails an examination may take
additional
examinations by sending in the appropriate fee with the board's re-exam form.
[
[(1)
An applicant who fails the second examination
may take a third examination after a specific period of not longer than one
year if the applicant meets the requirements prescribed for a previous examination.]
[(2)
An applicant who fails the third examination
may take an additional test at the board's discretion.]
(d)
An application for license is valid for
one year from the date it is received by the board. During that year, a re-exam
fee may be paid to the board for each subsequent exam taken by the applicant.
At the end of the year the application fee must be paid to continue the application
process for the second year. The process will then continue under the terms
of the original application.
§364.3.Temporary License.
(a)
(No change.)
(b)
An applicant who has not begun the process
before the first available exam may not obtain a temporary license but may
become licensed under §364.2 of this title (relating to Initial License
by Examination).
(c)
[
(1)
meet all provision of §364.1 of this title (relating
to Requirement for a License);
(2)
meet all provisions of §364.2 of this title (relating
to License by Examination);
(3)
submit the Confirmation of Examination Registration and
Eligibility to Examine form from NBCOT, which must be sent directly to the
board by NBCOT;
(4)
submit a signed Verification of Supervision form as provided
by the board;
(5)
send the board the application fee as set by the Executive
Council.
(d)
[
(e)
[
§364.4.Licensure by Endorsement.
(a)
(No change.)
(b)
Provisional License: The Board may grant a Provisional
License prior to an applicant who is applying for License by endorsement if
there is an unwarranted delay in the submission of required documentation
outside the
applicant's
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on May 10, 2001.
TRD-200102632
John Maline
Executive Director
Texas Board of Occupational Therapy Examiners
Earliest possible date of adoption: June 24, 2001
For further information, please call: (512) 305-6900
40 TAC §§367.1 - 367.3
The Texas Board of Occupational Therapy Examiners proposes
an amendment to §367.1 and proposes new §367.2 and §367.3 concerning
Continuing Education. The amendments and new rules will add addition means
of obtaining continuing education, explain the requirement to new licensees,
and add a requirement for those finishing this requirement later than 90 days
after the license is due to be renewed. The amendment and new rules add the
Type 1 and Type 2 continuing education requirements and a listing of not acceptable
continuing education.
John P. Maline, Executive Director of the Executive Council of Physical
Therapy and Occupational Therapy Examiners, has determined that for the first
five-year period the rules are in effect there will be no fiscal implications
for state or local government as a result of enforcing or administering the
rules.
Mr. Maline also has determined that for each year of the first five years
the rules are in effect the public benefit anticipated as a result of enforcing
the rules will be increased assurance that the licensee are meeting the continuing
educational requirements. There will be no effect on small businesses. There
are no anticipated economic costs to persons who are required to comply with
the rules as proposed.
Comments on the proposed rules may be submitted to Augusta Gelfand, OT
Coordinator, Texas Board of Occupational Therapy Examiners, 333 Guadalupe,
Suite 2-510, Austin, Texas, 78701, (512) 305-6900, augusta.gelfand@mail.capnet.state.tx.us.
The amendment and new rules are proposed under the Occupational
Therapy Practice Act, Title 3, Subchapter H, Chapter 456, Occupations Code,
which provides the Texas Board of Occupational Therapy Examiners with the
authority to adopt rules consistent with this Act to carry out its duties
in administering this Act.
Title 3, Subchapter H, Chapter 454 of the Occupations Code is affected
by the proposal.
§367.1.Continuing Education.
(a)
The Act[
[(1)
Licensees randomly selected for the audit
must provide to TBOTE appropriate documentation within 30 days of notification.]
[(2)
Continuing Education Documentation must
be maintained for two years from the date of the last renewal for auditing
purposes.]
(b)
Continuing education documentation includes,
but is not limited to, a final official transcript, AOTA self-study completion
certificates, copies of official sign-in or attendance sheets, course certificates
of attendance, certificates of completion, and official correspondence from
the board approving requesting credits.
(c)
The first regular license, which has a
duration of less than 2 years, does not have a continuing education requirement.
(d)
All licensees, except those addressed
in subsection (b) of this section must complete 30 hours of continuing education
every two years during the period of time the license is current in order
to renew the license. Those renewing a license more than 90 days late must
submit proof of continuing education for the renewal.
(1)
General information hereafter referred to as Type 1 continuing
education is relevant to the profession of occupational therapy. Examples
include by are not limited to: supervision, education, documentation, quality
improvement, administration, reimbursement and other OT related subjects.
(2)
A minimum of 15 hours of continuing education must be in
skills relevant to occupational therapy practice with patients or clients
hereafter referred to as Type 2.
(A)
Type 2 courses teach occupational therapy treatment and
intervention with patients or clients.
(B)
All continuing education hours may be in Type 2.
(e)
Any continuing education submissions may
be counted only one time.
[(b)
Licensees must complete 30 hours of continuing
education every two years. These requirements must be met before the month
the license is expected to be renewed.]
[(c)
A minimum of 15 hours of continuing education
must be in skills relevant to occupational therapy practice with patients
or clients. This requirement is effective beginning with licenses due for
renewal in January 2000.]
[(d)
Continuing education credit may be earned
in the following manner:]
[(1)
Attendance at workshops, refresher courses, in-services,
professional conferences, seminars, or facility-based continuing education
programs. Hour for hour credit on program content only. No maximum;]
[(2)
Presentations by Licensee:]
[(A)
Professional presentations, e.g., in-services, workshops,
institutes (any presentation counted only one time). Hour for hour credit,
10 hours maximum;]
[(B)
Community/service organization presentations (any presentation
counted only one time). Hour for hour credit. Four hours maximum;]
[(3)
Formal academic coursework:]
[(A)
One or two credit hour classes 2 continuing education
hours;]
[(B)
Three or four credit hour classes 4 continuing education
hours;]
[(4)
AOTA Self-study Series: Hour for hour credit based on
the number of hours awarded by AOTA for each course. (Any course can be counted
only once per licensee.) No maximum;]
[(5)
Development of publications, media materials or research/grant
activities. A request to receive credit for this category must be submitted
in writing to the Coordinator of Occupational Therapy no later than 60 days
before the current license expiration date. The request must include a description
of the activity/course, the sponsoring group, its direct relevance to the
occupational therapy profession, and the number of hours to complete it. (Any
publication, media materials, or research or grant activities can be counted
only once per licensee). 10 hours;]
[(6)
First Aid and cardiopulmonary resuscitation training,
either initial instruction or refresher training, can only be submitted for
continuing education once per licensee;]
[(7)
Home study courses, Internet-based courses, and videotape
instruction: A request to receive credit for this category must be submitted
in writing to the Coordinator of Occupational Therapy no later than 60 days
before the current license expiration date. The request must include the course
title, the number of hours required for completion, the sponsoring group,
and a description of its direct relevance to the occupational therapy profession.
(Any course or videotape can be counted only once per licensee). No maximum;]
[(e)
Any deviation from the above continuing
education categories will be reviewed on a case by case basis by the Coordinator
of Occupational Therapy or by the Continuing Education Committee. The request
must include a description of the activity/course, sponsoring group, its direct
relevance to the occupational therapy professional, and the number of hours
to complete it. A request for special consideration must be submitted in writing
a minimum of 60 days prior to expiration of the license.]
[(f)
Continuing education documentation includes,
but is not limited to, final official transcripts, AOTA self-study completion
certificates, copies of official sign-in or attendance sheets, and official
correspondence from the Executive Council or board approving requested credits.]
[(1)
The continuing education record card (blue card) will
no longer be accepted as proof of continuing education activities effective
December 1, 2001.]
[(2)
Documentation must identify the licensee by name and license
number, and must include the date and title of the course, the signature of
the authorized signer, and the number of CEUs or contact hours awarded for
the course.]
§367.2.Categories of Continuing Education.
(a)
Continuing education undertaken by a licensee for renewal
shall be acceptable if it falls in one or more of the following categories.
(1)
Formal academic courses related to occupational therapy.
Completion of course work at or through an accredited college or university
shall be counted as follows: three CE hours for each credit hour of a course
with a grade of A, B, C, and/or P (Pass). Thus a three-credit course counts
for 9 credit hours of continuing education. All college course work must comply
with Type 1 and Type 2 as outlined in §367.1 of this title (relating
to Continuing Education).
(2)
In-service educational programs, training programs, institutes,
seminars, workshops, facility based courses, and conferences in occupational
therapy. Hour for hour credit on program content only, no maximum.
(3)
Development of publication, media materials or research/grant
activities per two year renewal period.
(A)
Published scholarly work in a peer-review journal, 15 hours
maximum.
(B)
Secondary author (second or other author), 7 hours maximum.
(C)
Published book or book chapter(s), 10 hours maximum.
(D)
Second author, 6 hours maximum.
(E)
Other publications such as newsletter and trade magazines,
2 hours maximum.
(F)
Principle investigator or co-principle investigator in
grant or research proposals accepted for consideration.
(4)
Home study courses, Internet-based courses, and videotape
instruction.
(A)
Courses must fit the criteria for continuing education
for Type 1 or Type 2.
(B)
These courses must have a post-test and give a certificate
of completion.
(C)
Internet courses must reflect a pre-determined number of
credit hours.
(5)
Professional presentations by licensee
(A)
Professional presentation, e.g. in-services, workshops,
institutes: any presentations counted only one time. Hour for hour credit.
10 hour maximum.
(B)
Community/Service organization presentation: any presentation
counted once. Hour for hour credit. 10 hours maximum.
(6)
Any deviation from the above continuing education categories
will be reviewed on a case by case basis by the Coordinator of Occupational
Therapy or by the Continuing Education Committee. A request for special consideration
must be submitted in writing a minimum of 60 days prior to expiration of the
license.
(b)
Unacceptable Continuing Education Activities include but
are not limited to
(1)
Any non-instructional time frames such as breaks, meals,
introductions, and pre/post testing.
(2)
Business meetings
(3)
Exhibit hall attendance
(4)
Reading journals
(5)
Courses such as grant writing, case management, massage
therapy, general management and business, social work, defensive driving,
water safety, team building, GRE, GMAT, MCAT preparation, cooking for health,
weight management, women's health and stress management, reading techniques,
geriatric anthology, general foreign languages.
§367.3.Continuing Education Audit.
(a)
The board shall select for audit a random sample of licensees.
The audit will cover a period for which the licensee has already completed
the 30 hours required and has signed to that fact on the renewal form.
(b)
Licensees randomly selected for the audit must provide
to TBOTE appropriate documentation within 30 days of notification. Documentation
submitted must specify whether they are Type 1 or Type 2.
(c)
Continuing education documentation must be maintained for
two years from the date of the last renewal for auditing purposes, or a total
of four years.
(1)
The continuing education record card (blue card) will no
longer be accepted as proof of continuing education activities, effective
December 1, 2001.
(2)
Documentation must identify the licensee by name and license
number, and must include the date and title of the course, the signature of
the authorized signer, and the number of CEUs or contact hours awarded for
the course.
(d)
Knowingly providing false information or failure to respond
during the audit process or the renewal process is grounds for disciplinary
action.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on May 10, 2001.
TRD-200102633
John Maline
Executive Director
Texas Board of Occupational Therapy Examiners
Earliest possible date of adoption: June 24, 2001
For further information, please call: (512) 305-6900
40 TAC §370.1
The Texas Board of Occupational Therapy Examiners proposes
an amendment to §370.1 concerning License Renewal. The amendments add
a requirement that those renewing their license more than 90 days late must
submit proof of their continuing education with their renewal.
John P. Maline, Executive Director of the Executive Council of Physical
Therapy and Occupational Therapy Examiners, has determined that for the first
five-year period the rule is in effect there will be no fiscal implications
for state or local government as a result of enforcing or administering the
rule.
Mr. Maline also has determined that for each year of the first five years
the rule is in effect the public benefit anticipated as a result of enforcing
the rule will be clarification of late renewal requirements. There will be
no effect on small businesses. There are no anticipated economic costs to
persons who are required to comply with the rule as proposed.
Comments on the proposed rule may be submitted to Augusta Gelfand, OT Coordinator,
Texas Board of Occupational Therapy Examiners, 333 Guadalupe, Suite 2-510,
Austin, Texas, 78701, (512) 305-6900, augusta.gelfand@mail.capnet.state.tx.us.
The amendment is proposed under the Occupational Therapy Practice
Act, Title 3, Subchapter H, Chapter 456, Occupations Code, which provides
the Texas Board of Occupational Therapy Examiners with the authority to adopt
rules consistent with this Act to carry out its duties in administering this
Act.
Title 3, Subchapter H, Chapter 454 of the Occupations Code is affected
by this amended section.
§370.1.License Renewal.
(a)
Licensees are required to renew their licenses every two
years by the end of their birth month. A licensee may not provide occupational
therapy services without a current license or renewal certificate in hand.
If a license expires after all required items are submitted but before the
licensee received the renewal certificate, the licensee may not provide occupational
therapy services until the renewal certificate is in hand.
(1)
General Requirements. The renewal application is not complete
until the Board receives all required items. The components required for license
renewal are:
(A)
Signed renewal application form verifying completion of
30 hours of continuing education (
see
[
(B) - (C)
(No change.)
(2)
(No change.)
(3)
Late Renewals. A renewal application is late if all required
materials are not postmarked prior to the expiration date of the license.
Licensees who do not complete the renewal process prior to the expiration
date are subject to late fees as described.
(A)
(No change.)
(B)
If the license has been expired for more than 90 days,
the late fee is equal to the examination fee for the license.
Those renewing
a license more than 90 days late must submit the documentation for the required
continuing education with the renewal.
(C)
If the license has been expired for one year or longer,
the person may not renew the license. To obtain a new license, the applicant
must retake and pass the national examination and comply with the requirements
and procedure for obtaining an original license set by Chapter 364
of
this title (relating to
Requirements for Licensure
)
.
(b) -(c)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on May 10, 2001.
TRD-200102634
John Maline
Executive Director
Texas Board of Occupational Therapy Examiners
Earliest possible date of adoption: June 24, 2001
For further information, please call: (512) 305-6900
40 TAC §372.1
The Texas Board of Occupational Therapy Examiners proposes
an amendment to §372.1 concerning Provision of Services. The amendments
are a reorganization of the chapter. It differentiates between medical and
non-medical condition, screening, evaluation and plan of care.
John P. Maline, Executive Director of the Executive Council of Physical
Therapy and Occupational Therapy Examiners, has determined that for the first
five-year period the rule is in effect there will be no fiscal implications
for state or local government as a result of enforcing or administering the
rule.
Mr. Maline also has determined that for each year of the first five years
the rule is in effect the public benefit anticipated as a result of enforcing
the rule will be clarification of terms and clarification of roles. It also
adds the ability to work in telehealth. There will be no effect on small businesses.
There are no anticipated economic costs to persons who are required to comply
with the rule as proposed.
Comments on the proposed rule may be submitted to Augusta Gelfand, OT Coordinator,
Texas Board of Occupational Therapy Examiners, 333 Guadalupe, Suite 2-510,
Austin, Texas, 78701, (512) 305-6900, augusta.gelfand@mail.capnet.state.tx.us.
The amendment is proposed under the Occupational Therapy Practice
Act, Title 3, Subchapter H, Chapter 456, Occupations Code, which provides
the Texas Board of Occupational Therapy Examiners with the authority to adopt
rules consistent with this Act to carry out its duties in administering this
Act.
Title 3, Subchapter H, Chapter 454 of the Occupations Code is affected
by this amended section.
§372.1.Provision of Services.
(a)
Medical Conditions
(1)
Treatment for a medical condition by an occupational therapy
practitioner requires a referral from a licensed referral source.
(2)
The referral may be an oral or singed written order. If
oral, it must be followed by a signed written order.
(3)
If a written referral signed by the referral source is
not received by the third treatment or within two weeks from the receipt of
the oral referral, whichever is late, the therapist must have documented evidence
of attempt(s) to contact the referral source for the written referral (e.g.,
registered letter, fax, certified letter, email, return receipt, etc.). The
therapist must exercise professional judgement to determine cessation or continuation
of treatment with a receipt of the written referral.
(b)
Non-Medical Conditions
(1)
Consultation, monitored services, and evaluation for need
of services may be provided without a referral.
(2)
Non-medical conditions do not require a referral. However,
a referral must be requested at any time during the evaluation or treatment
process when necessary to insure the safety and welfare of the consumer.
[(a)
Referral. Occupational therapists may
accept referrals from all qualified licensed health care professionals who
within the scope of licensure are authorized to refer for healthcare services.
This includes but is not limited to dentists, chiropractors, and podiatrists.]
[(1)
Consultation, monitored services, screening, and evaluation
for need of services may be provided without a referral.]
[(2)
Occupational therapy for non-medical conditions (refer
to §362.1 of this title (relating to Definitions)) does not require a
referral. However, a referral must be requested at any time during the evaluation
or treatment process when necessary to insure the safety and welfare of the
consumer.]
[(3)
The provision of direct treatment by an OTR, LOT, COTA
or LOTA for medical conditions requires a referral. A referral may be an oral
or written order to initiate services. If an oral referral is received, it
must be followed by a written order signed by the referral source requesting
the services.]
[(4)
An oral referral for evaluation and/or treatment must
be received and documented by a licensed health care provider.]
[(5)
If a written referral is not received by the third treatment
or within two weeks from receipt of the oral referral, whichever is later,
the therapist must have documented evidence of attempt(s) to contact the referral
source for a written referral (e.g., registered letter, fax, certified letter,
e-mail, return receipt, etc.). The therapist must exercise professional judgment
to determine cessation or continuation of treatment without receipt of the
written referral.
[(b)
A COTA or LOTA may assist in the provision
of OT services as specified in §373.1(b) of this title (relating to Supervision).]
(c)
Screening [
[(1)
Screening for occupational therapy services
must be initiated and completed by a TBOTE licensee.]
[(2)
Occupational therapy intervention may
not be provided without an occupational therapy evaluation completed by an
OTR or LOT.]
(d)
Evaluation.
(1)
Only an occupational therapist may perform the evaluation.
(2)
An occupational therapy plan of care must be based on an
occupational therapy evaluation.
(3)
The occupational therapist must have face-to-face, real
time interaction with the patient or client during the evaluation process.
(e)
Plan of Care
(1)
Only an occupational therapist may initiate, develop, modify
or complete an occupational therapy plan of care.
(2)
The occupational therapist and occupational therapy assistant
may work jointly to revise the short-term goals, but the final determination
resides with the occupational therapist.
(3)
An occupational therapy plan of care may be integrated
into an interdisciplinary plan of care, but the occupational therapy goals
or objectives must be easily identifiable in the plan of care.
(4)
Only occupational therapy practitioners licensed by the
Texas Board of Occupational Therapy Examiners (TBOTE) may implement the plan
of care.
(5)
Only the occupational therapist or occupational therapist
assistant may train non-licensed personnel or family members to carry out
specific tasks that support the occupational therapy plan of care.
(6)
The occupational therapist may delegate to an occupational
therapy assistant the collection of data for the assessment. The occupational
therapist is responsible for the accuracy of the data collected by the assistant.
(7)
The occupational therapist is responsible for determining
whether intervention is needed and if a referral is required for occupational
therapy intervention.
(8)
The occupational therapist or the occupational therapy
assistant must have face-to-face, real time interaction with the patient or
client during the intervention process.
(9)
It is the occupational therapist's responsibility to ensure
that all documentation which becomes part of the patient's/client's permanent
record is approved and co-signed by the occupational therapist and signed
on the bottom of each page.
[(d)
Occupational Therapy Plan of Care Development.]
[(1)
An occupational therapy plan of care must be based on
an occupational therapy evaluation.]
[(2)
The occupational therapy plan of care (refer to §362.1
of this title (relating to Definitions)) must be developed by an OTR or LOT.]
[(3)
An occupational therapy plan of care may be integrated
into an interdisciplinary plan of care, but occupational therapy goals or
objectives must be easily identifiable in the plan of care.]
[(4)
Only an OTR or LOT may change an occupational therapy
plan of care.]
[(e)
Occupational Therapy Plan of Care Implementation.]
[(1)
Only licensed occupational therapy personnel may implement
an occupational therapy plan of care.]
[(2)
Only licensed occupational therapy personnel may train
non-licensed individuals to carry out specific tasks that support the occupational
therapy plan of care.]
(f)
Discharge.
(1)
Only an occupational therapist has the
authority to discharge patients from occupational therapy services. The discharge
is based on whether the patient or client has achieved predetermined goals,
has achieved maximum benefit from occupational therapy services; or when other
circumstances warrant discontinuation of occupational therapy services.
(2)
The occupational therapist is responsible
for the content and validity of the discharge summary and must sign the discharge
summary.
[(1)
An OTR or LOT has authority to discharge
patients from occupational therapy services.]
[(2)
The OTR or LOT shall discharge a patient
or client when the patient or client has achieved predetermined goals; has
achieved maximum benefit from OT services; or when other circumstances warrant
discontinuation of occupational therapy services.]
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on May 10, 2001.
TRD-200102636
John Maline
Executive Director
Texas Board of Occupational Therapy Examiners
Earliest possible date of adoption: June 24, 2001
For further information, please call: (512) 305-6900
40 TAC §§373.1 - 373.3
The Texas Board of Occupational Therapy Examiners proposes
amendment to §373.1 and new §373.2 and §373.3 concerning Supervision.
The amendment and new rules will differentiate between supervision for occupational
therapy assistants, temporary licensees and non-licensed personnel.
John P. Maline, Executive Director of the Executive Council of Physical
Therapy and Occupational Therapy Examiners, has determined that for the first
five-year period the rules are in effect there will be no fiscal implications
for state or local government as a result of enforcing or administering the
rules.
Mr. Maline also has determined that for each year of the first five years
the rules are in effect the public benefit anticipated as a result of enforcing
the rules will be clarification of type of supervision as used in the OT rules.
There will be no effect on small businesses. There are no anticipated economic
costs to persons who are required to comply with the rules as proposed.
Comments on the proposed rules may be submitted to Augusta Gelfand, OT
Coordinator, Texas Board of Occupational Therapy Examiners, 333 Guadalupe,
Suite 2-510, Austin, Texas, 78701, (512) 305-6900, augusta.gelfand@mail.capnet.state.tx.us.
The amendment and new rules are proposed under the Occupational
Therapy Practice Act, Title 3, Subchapter H, Chapter 456, Occupations Code,
which provides the Texas Board of Occupational Therapy Examiners with the
authority to adopt rules consistent with this Act to carry out its duties
in administering this Act.
Title 3, Subchapter H, Chapter 454 of the Occupations Code is affected
by the proposal.
§373.1.Supervision of Non-Licensed Personnel .
(a)
Licensed occupational therapist are fully
responsible for the planning and delivery of occupational therapy services.
They may use non-licensed personnel to extend their services; however, the
non-licensed personnel must be under the supervision of the licensed occupational
therapist or licensed occupational therapy assistant.
(b)
Close Personnel Supervision implies direct,
on-site contact whereby the supervising occupational therapy licensee is able
to respond immediately to the needs of the patient. This type of supervision
is required for non-licensed personnel providing support services to the occupational
therapist and occupational therapy assistant.
(c)
When occupational therapy licensees delegate
occupational therapy tasks to non-licensed personnel, the licensee is responsible
for ensuring that this person is adequately trained in the tasks delegated.
(d)
The licensee proving the treatment must
interact with the patient regarding the patient's condition, progress, and/or
achievement of goals during each treatment session.
(e)
Delegation of tasks to non-licensed personnel
includes but is not limited to:
(1)
routine department maintenance;
(2)
transportation of patients/clients;
(3)
preparation or set up of treatment equipment and work area;
(4)
assisting patients/clients with their personal needs during
treatment;
(5)
assisting in the construction of adaptive/assistive equipment
and splints. The licensee must be on-site and attending for any initial applications
to the patient;
(6)
carrying out a predetermined segment or task in the patient's
care for which the patient has demonstrated some previous performance ability
in executing the task;
(f)
The non-licensed personnel may not:
(1)
perform occupational therapy evaluative procedures
(2)
initiate, plan, adjust, or modify occupational therapy
procedures.
(3)
act on behalf of the occupational therapist in any matter
relating to occupational therapy which requires decision making or professional
judgements.
[(a)
Occupational Therapists, Registered or
Licensed Occupational Therapists (OTRs or LOTs) are fully responsible for
the planning and delivery of occupational therapy services.]
[(1)
The supervising OTR or LOT is responsible for providing
the supervision necessary to protect the health and welfare of the consumer
receiving OT services from a COTA, LOTA, temporary licensee or OT Aide or
Orderly.]
[(2)
OTRs or LOTs must ensure that tasks appropriate for a
COTA, LOTA or temporary licensee are not delegated to persons without current
licenses.]
[(3)
The COTA, LOTA or temporary licensee is responsible for
the execution of his or her professional duties.]
[(b)
Supervision of a COTA or an LOTA.]
[(1)
The OTR or LOT shall delegate responsibilities to the
COTA or LOTA that are within the scope of his or her training.]
[(2)
A COTA or LOTA shall provide occupational therapy services
only under the general supervision of a licensed OTR or LOT. (See Chapter
362 of this title (relating to Definitions)).]
[(A)
General supervision (See Chapter 362 of this title (relating
to Definitions)) of COTAs or LOTAs must be documented on an "Occupational
Therapy Supervision Log" prescribed by the board. COTAs and LOTAs employed
part time or with more than one employer shall prorate the required documented
supervision.]
[(i)
The "Occupational Therapy Supervision Log" must be kept
by the COTA or LOTA and a copy of this form must be maintained by each employer.]
[(ii)
The "Occupational Therapy Supervision Log" must be submitted
to TBOTE with the COTA's or LOTA's renewal application.]
[(B)
The supervising OTR or LOT need not be physically present
or on the premises at all times.]
[(3)
Except where otherwise restricted by rule, the supervising
OTR or LOT may only delegate tasks to a COTA or LOTA that the OTR or LOT and
COTA or LOTA agree are within the competency level of that COTA or LOTA.]
[(A)
A COTA or LOTA may initiate and perform the screening
process and collect information for the OTR's or LOT's review. The OTR or
LOT is responsible for determining if intervention is needed and if a referral
is required for evaluation and/or occupational therapy intervention.]
[(B)
An OTR or LOT is responsible for the patient's evaluation/assessment.
The supervising OTR or LOT may delegate to a COTA or LOTA the collection of
data or information for the evaluation.]
[(i)
The OTR or LOT is responsible for the accuracy of evaluative
information collected by the COTA or LOTA.]
[(ii)
The OTR or LOT must have face-to-face interaction with
the patient or client during the evaluation process.]
[(C)
Only an OTR or LOT may develop or modify an Occupational
Therapy plan of care (refer to §362.1 of this title (relating to Definitions)).]
[(D)
The OTR or LOT is responsible for the content and validity
of the discharge summary and must sign the discharge summary.]
[(4)
It is the responsibility of the OTR or LOT and the COTA
or LOTA to ensure that all documentation prepared by the COTA or LOTA which
becomes part of the patient's/client's permanent record is approved and co-signed
by the supervising OTR or LOT. Occupational Therapy notes must be initialed
by the OTR or LOT and signed at the bottom of each page.]
[(5)
These rules shall not preclude the COTA or LOTA from responding
to emergency situations in the patient's condition, which require immediate
action.]
[(c)
Supervision of an OT Aide or OT Orderly.]
[(1)
When an OTR, LOT, COTA and/or LOTA delegates OT tasks
to an aide or orderly, the OTR, LOT, COTA and/or LOTA is responsible for the
aide's actions during patient contact on the delegated tasks. The licensee
is responsible for ensuring that the aide is adequately trained in the tasks
delegated.]
[(2)
The OTR, LOT, COTA or LOTA must interact with the patient
regarding the patient's condition, progress and/or achievement of goals during
each treatment session.]
[(3)
An OTR, LOT, COTA and/or LOTA using OT Aide or OT Orderly
personnel to assist with the provision of occupational therapy services must
provide close personal supervision in order to protect the health and welfare
of the consumer. (See Chapter 362 of this title (relating to Definitions)).]
[(4)
Delegation of tasks to OT Aides or OT Orderlies.]
[(A)
The primary function of an OT Aide or OT Orderly functioning
in an occupational therapy setting is to perform designated routine tasks
related to the operation of an occupational therapy service. An OTR, LOT,
COTA and/or LOTA may delegate to an OT Aide or OT Orderly only specific tasks
which are not evaluative or recommending in nature, and only after insuring
that the OT Aide or OT Orderly has been properly trained for the performance
of the tasks. Such tasks include, but are not limited to:]
[(i)
routine department maintenance;]
[(ii)
transportation of patients/clients;]
[(iii)
preparation or setting up of treatment equipment and
work area;]
[(iv)
assisting patients/clients with their personal needs
during treatment;]
[(v)
assisting in the construction of adaptive equipment and
splints;]
[(vi)
clerical, secretarial, administrative activities;]
[(vii)
carrying out a predetermined segment or task in the
patient's care.]
[(B)
The OTR, LOT, COTA and/or LOTA shall not delegate to an
OT Aide or OT Orderly:]
[(i)
performance of occupational therapy evaluative procedures;]
[(ii)
initiation, planning, adjustment, modification, or performance
of occupational therapy procedures requiring the skills or judgment of an
OTR, LOT, COTA or LOTA;]
[(iii)
making occupational therapy entries directly in patients'
or clients' official records;]
[(iv)
acting on behalf of the occupational therapist in any
matter related to occupational therapy which requires decision making or professional
judgment.]
[(d)
Supervision of an occupational therapist
or an occupational therapy assistant with a temporary license.]
[(1)
A person issued a temporary occupational therapy license
must practice occupational therapy under the continuing supervision of an
OTR or LOT. (See Chapter 362 of this title (relating to Definitions)).]
[(2)
A minimum of 16 hours of supervision per month for full
time OTAs must be documented on an "Occupational Therapy Supervision Log"
prescribed by the board. OTAs employed part time or with more than one employer
shall prorate the required documented supervision. If the OTA is employed
less than 20 hours per week, a minimum of eight hours of supervision is required
per month.]
[(A)
The "Occupational Therapy Supervision Log" must be kept
by the OTA and a copy of this form must be maintained by each employer.]
[(B)
The "Occupational Therapy Supervision Log" must be submitted
to TBOTE with the COTA's first renewal application after regular licensure.]
[(3)
The temporary licensee must certify to the board the name,
license number, and address of his or her supervisor on a form provided by
the board during the application process.]
[(4)
The temporary licensee must notify the board within 15
days of a change in the OTR or LOT supervisor.]
[(5)
The temporary licensee shall not supervise an occupational
therapy student, a COTA or LOTA, an occupational therapy assistant or an OT
Aide or OT Orderly.]
[(6)
All documentation completed by an individual holding a
temporary license which becomes part of the patient's/client's permanent file
must be approved and co-signed by the supervising OTR or LOT. Occupational
Therapy notes must be initialed by the OTR or LOT and signed at the bottom
of each page.]
[(e)
Supervision of Provisional Licensees.]
[(1)
OTRs and LOTs with provisional licenses are excluded from
supervision requirements.]
[(2)
COTAs and LOTAs with provisional licenses will require
general supervision by a licensed OTR or LOT.]
§373.2.Supervision of a Temporary Licensee.
(a)
Supervision of an occupational therapist with a temporary
license includes:
(1)
frequent communication between the supervising occupational
therapist and the temporary licensee by telephone, written report or conference,
including the review of progress of patients/clients assigned, plus
(2)
encounters twice a month where the occupational therapist
directly observes the temporary licensee providing services to one or more
patients/clients with face-to-face, real time interaction.
(b)
Supervision of an occupational therapy assistant with a
temporary license includes;
(1)
sixteen hours of supervision a month of which at least
twelve hours are through telephone, written report or conference, including
the renew of progress of patients/clients assigned; plus
(2)
four or more hours of supervision a month which are face-to-face,
real time supervision with the temporary licensee providing services to one
or more patients/clients.
(c)
Temporary licensees may not supervise anyone.
(d)
All documentation completed by an individual holding a
temporary license which becomes part of the patient's/client's permanent file,
must be approved and co-signed by the supervising occupational therapist.
(e)
A temporary licensee works under the supervision of a regular
licensed occupational therapist, whole name and license number are on file
on the board's "Supervision of a Temporary Licensee" form.
(f)
A temporary licensee does not become a regular licensee
with those privileges until the regular license is in hand.
§373.3.Supervision of a Licensed Occupational Therapy Assistant.
(a)
Supervision per month of eight hours includes:
(1)
A minimum of six hours a month of frequent communication
with the supervising occupational therapist(s) and the occupational therapy
assistant by telephone, written report, email, conference etc., including
review of progress of patient's/client's assigned.
(2)
A minimum of two hours of supervision a month of face-to-face,
real time interaction observing the occupational therapy assistant providing
services with patients/clients.
(b)
Part-time licensees may pro-rate these hours, but shall
document no less than four hours of supervision per month, one hours of which
includes face-to-face, real time interaction observing the occupational therapy
assistant providing services with patients/clients.
(c)
Occupational Therapy Assistants with more than one employer
must have a supervisor at each job.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on May 10, 2001.
TRD-200102638
John Maline
Executive Director
Texas Department of Occupational Therapy Examiners
Earliest possible date of adoption: June 24, 2001
For further information, please call: (512) 305-6900
Chapter 18.
NURSING FACILITY ADMINISTRATORS
(16)
] Internship -- The training
period for an Administrator-In-Training gaining supervised practical experience.
(17)
] License -- A nursing facility
administrator license or a provisional nursing facility administrator license.
(18)
] Licensee -- A person who
is licensed under the Texas Health and Safety Code, Chapter 242, Subchapter
I.
(19)
] Misappropriation of resident
property -- The taking, secretion, misapplication, deprivation, transfer,
or attempted transfer to any person not entitled to receive any property,
real or personal, or anything of value belonging to or under the legal control
of a resident without the effective consent of the resident or other appropriate
legal authority, or taking of any action contrary to any duty imposed by federal
or state law prescribing conduct relating to the custody or disposition of
property of a resident.
(20)
] NAB -- National Association
of Boards of Examiners for Nursing Home Administrators, Inc.
(21)
] Neglect -- A deprivation
of life's necessities of food, water, or shelter, or a failure of an individual
to provide services, treatment, or care to a resident which causes or could
cause mental or physical injury, or harm or death to the resident.
(22)
] Nursing facility -- An institution
or facility that is licensed as a nursing facility by the department under
the Texas Health and Safety Code, Chapter 242.
(23)
] Nursing facility administrator
or administrator -- A person who engages in the practice of nursing facility
administration without regard to whether the person has an ownership interest
in the facility or whether the functions and duties are shared with any other
person.
(24)
] Party -- Each person, governmental
agency, or officer or employee of a governmental agency named by the Administrative
Law Judge as having a justifiable interest in the matter being considered,
or any person, governmental agency, or officer or employee of a governmental
agency meeting the requirements of a party prescribed by applicable law.
(25)
] Person -- An individual,
corporation, partnership, or other legal entity.
(26)
] Practice of nursing facility
administration -- The performance of the acts of administering, managing,
supervising, or being in general administrative charge of a nursing facility.
(27)
] Practicum -- A course of
study designed for the preparation of nursing facility administrators that
involves supervision by the college of the practical application of previously
studied theory in a nursing facility setting.
(28)
] Preceptor -- A licensed
nursing facility administrator who meets the criteria in §18.6 of this
title (relating to Administrators-in-Training).
(29)
] Referral -- A finding of
substandard quality of care in a nursing facility that requires Long Term
Care-Regulatory to report an administrator to its licensing authority as mandated
by the Code of Federal Regulations.
(30)
] Substandard Quality of Care
-- Any deficiency in Resident Behavior and Facility Practices, Quality of
Life, or Quality of Care that constitutes: immediate jeopardy to resident
health or safety; or, a pattern of widespread actual harm that is not immediate
jeopardy; or, a widespread potential for more than minimal harm that is not
immediate jeopardy, with no actual harm.
(31)
] Standard survey -- A periodic,
resident-centered inspection that gathers information about the quality of
service furnished in a facility to determine compliance with the requirements
of participation.
(32)
] Texas Open Meetings Act
-- The Government Code, Chapter 551, Subchapters A-G.
(33)
] Texas Open Records Act --
The Government Code, Chapter 552, Subchapters A-G.
(34)
] Year -- A calendar year.
shall grant
] a provisional license to an individual who
provides evidence of the following:
DHS may, at its discretion,
waive the requirement in subsection (a)(5) of this section, if compliance
places a hardship on an individual.
]
Part 2.
TEXAS REHABILITATION COMMISSION
Subchapter B. ACQUISITION OF GOODS AND SERVICES FOR ADJUDICATION OF CLAIMS BY DISABILITY DETERMINATION SERVICES
Subchapter C. ACQUISITION OF ADMINISTRATIVE GOODS AND SERVICES
Subchapter D. DEBARMENT
Subchapter E. RATES FOR MEDICAL SERVICES
Subchapter F. RESOLUTION OF CERTAIN CONTRACT CLAIMS AGAINST THE STATE-NEGOTIATION OF CLAIM
Chapter 106.
PURCHASE OF GOODS AND SERVICES BY TEXAS REHABILITATION COMMISSION
Subchapter D. PURCHASE OF GOODS AND SERVICES
Subchapter J. PROTEST PROCEDURES
Subchapter K. HISTORICALLY UNDERUTILIZED BUSINESSES
Subchapter M. MISCELLANEOUS REQUIREMENTS
Subchapter N. CONTRACT ADMINISTRATION
Subchapter O. APPEALS
Chapter 106.
PURCHASE OF GOODS AND SERVICES BY TEXAS REHABILITATION COMMISSION
Part 4.
TEXAS COMMISSION FOR THE BLIND
Chapter 163.
VOCATIONAL REHABILITATION PROGRAM
All
] vocational rehabilitation
services are subject to this subchapter except the following:
reader and interpreter services;
]
and
]
(11)
] services paid for or reimbursed
by a source other than the commission.
Part 12.
TEXAS BOARD OF OCCUPATIONAL THERAPY EXAMINERS
(9)
] Complete Application--Notarized
application form with photograph, license fee, jurisprudence examination with
at least 70% of questions answered correctly and all other required documents.
(10)
] Complete Renewal--Contains
renewal fee,
renewal form with signed continuing education affidavit,
home/work address(es) and phone number(s),
and
jurisprudence
examination with at least 70% of questions answered correctly [
and supervision
log (if applicable)
].
(11)
] Consultation--The provision
of occupational therapy expertise to an individual or institution. This service
may be provided on a one time only basis or on an ongoing basis.
(12)
] Continuing Education Committee--Reviews
and makes recommendations to the board concerning continuing education requirements
and special consideration requests.
(15)
] Coordinator of Occupational
Therapy Program--The employee of the Executive Council who carries out the
functions of the Texas Board of Occupational Therapy Examiners.
(16)
] Direct Service--Refers to
the provision of occupational therapy services to individuals to develop,
improve, and/or restore occupational functioning.
(17)
] Endorsement--The process
by which the board issues a license to a person currently licensed in another
state, the District of Columbia, or territory of the United States that maintains
professional standards considered by the board to be substantially equivalent
to those set forth in the Act, and is apply for a Texas license for the first
time.
(18)
] Evaluation--Refers to a process
of determining an individual's status for the purpose of determining the need
for occupational therapy services or for implementing a treatment program.
(19)
] Examination--The Examination
as provided for in Section 17 of the Act. The current Examination is the initial
certification Examination given by the National Board for Certification in
Occupational Therapy (NBCOT).
(20)
] Executive Council--The Executive
Council of Physical Therapy and Occupational Therapy Examiners.
(21)
] Executive Director--The employee
of the Executive Council who functions as its agent. The Executive Council
delegates implementation of certain functions to the Executive Director.
(22)
] First Available Examination--Refers
to the first scheduled Examination after successful completion of all educational
requirements.
(24)
] Health Care Condition--See
Medical Condition
(25)
] Investigation Committee--Reviews
and makes recommendations to the board concerning complaints and disciplinary
actions regarding licensees and facilities.
(26)
] Investigator--The employee
of the Executive Council who conducts all phases of an investigation into
a complaint filed against a licensee, an applicant, or an entity regulated
by the board.
(27)
] Jurisprudence Examination--An
examination covering information contained in the Texas Occupational Therapy
Practice Act and Texas Board of Occupational Therapy Examiners rules. This
test is an open book examination with multiple choice or true-false questions.
[
made up of multiple choice and/or true-false questions.
] The passing
score is 70%.
(28)
] License--Document issued
by the Texas Board of Occupational Therapy Examiners which authorizes the
practice of occupational therapy in Texas.
(29)
] Licensed Occupational Therapist
(LOT)--A person who holds a valid regular or provisional license to practice
or represent self as an occupational therapist in Texas.
(30)
] Licensed Occupational Therapy
Assistant (LOTA)--A person who holds a valid regular or provisional license
to practice or represent self as an occupational therapy assistant in Texas
and who is required to practice under the general supervision of an OTR or
LOT.
(31)
] Medical Condition--A condition
of acute trauma, infection, disease process, psychiatric disorders, addictive
disorders, or post surgical status. Synonymous with the term health care condition.
(32)
] Monitored Services--The checking
on the status/condition of students, patients, clients, equipment, programs,
services, and staff in order to make appropriate adjustments and recommendations.
Minimum contact for the purpose of monitoring will be one time a month.
(33)
] NBCOT (formerly AOTCB)--National
Board for Certification in Occupational Therapy (formerly American Occupational
Therapy Certification Board).
(34)
] Non-Medical Condition--A
condition where the ability to perform occupational roles is impaired by developmental
disabilities, learning disabilities, the aging process, sensory impairment,
psychosocial dysfunction, or other such conditions which does not require
the routine intervention of a physician.
(35)
] Occupational Therapist (OT)--A
person who holds a Temporary License to practice as an occupational therapist
in the state of Texas, who is waiting to receive results of taking the first
available Examination, and who is required to be under continuing supervision
of an OTR or LOT.
(36)
] Occupational Therapist, Registered
(OTR)--An alternate term for a Licensed Occupational Therapist. An individual
who uses this term must hold a regular or provisional license to practice
or represent self as an occupational therapist in Texas. An individual who
uses this term is responsible for ensuring that he or she is otherwise qualified
to use it.
(37)
] Occupational Therapy--The
use of purposeful activity or intervention to achieve functional outcomes.
Achieving functional outcomes means to develop or facilitate restoration of
the highest possible level of independence in interaction with the environment.
Occupational Therapy provides services to individuals limited by physical
injury or illness, a dysfunctional condition, cognitive impairment, psychosocial
dysfunction, mental illness, a developmental or learning disability or an
adverse environmental condition, whether due to trauma, illness or condition
present at birth. Occupational therapy services include but are not limited
to:
(38)
] Occupational Therapy Assistant
(OTA)--A person who holds a Temporary License to practice as an occupational
therapy assistant in the state of Texas, who is waiting to receive results
of taking the first available Examination, and who is required to be under
continuing supervision of an OTR or LOT.
(39)
] Occupational Therapy Plan
of Care--A written statement of the planned course of Occupational Therapy
intervention for a patient/client. It must include goals, objectives and/or
strategies, recommended frequency and duration, and may also include methodologies
and/or recommended activities.
(41)
] Place(s) of Business--Any
facility in which a licensee practices.
(42)
] Practice--Providing occupational
therapy as a clinician, practitioner, educator, or consultant. Only a person
holding a license from TBOTE may practice occupational therapy in Texas.
(43)
] Recognized Educational Institution--An
educational institution offering a course of study in occupational therapy
that has been accredited or approved by the American Occupational Therapy
Association.
(44)
] Regular License--A license
issued by TBOTE to an applicant who has met the academic requirements and
who has passed the Examination.
(45)
] Rules--Refers to the TBOTE
Rules.
(46)
] Screening--A process or tool
used to determine a potential need for occupational therapy interventions.
This information may be compiled using observation, medical or other records,
the interview process, self-reporting, and/or other documentation.
(47)
] Temporary License--A license
issued by TBOTE to an applicant who meets all the qualifications for a license
except taking the first available Examination after completion of all education
requirements[
; or a license issued to an applicant who has passed the
Examination but has not been employed as an OTR, LOT, COTA or LOTA for five
years or more from the receipt date of current, complete application for licensure
with TBOTE
].
Chapter 364.
REQUIREMENTS FOR LICENSURE
4
]
months, no longer than 15 months.
a second examination by submitting a new application and fee.
]
(b)
] To be issued a temporary license,
the applicant must:
(c)
] If the applicant fails to take
the first available examination, or fails to have the scores reported, the
temporary license will be revoked.
(d)
] If the applicant fails the
examination, the temporary license is void and must be returned. No second
temporary licenses are issued after failure of the examination.
applicant
] control. All other
requirements for
licensure
[
requirements for a license
]
by endorsement must be met. The applicant must also submit the Provisional
License fee as set by the Executive Council[
, and notarized proof of
sponsorship by a licensee of this board, before the license may be issued
]. The Board may not grant a provisional license to an applicant with
disciplinary action in their license history, or to an applicant with pending
disciplinary action.
Chapter 367.
CONTINUING EDUCATION
, §5(A),
] mandates licensee participation
in a continuing education program for license renewal. All continuing education
must be directly relevant to the profession of occupational therapy. The licensee
is solely responsible for keeping accurate documentation of all continuing
education requirements. [
The Executive Council staff will conduct, at
least yearly, an audit of a randomly drawn sample of licensees to determine
compliance with continuing education rules. Failure to maintain accurate documentation,
or failure to respond to a request to submit documentation for an audit, may
result in disciplinary action by the board. The audit results will be reported
to the board.
]
Chapter 370.
LICENSE RENEWAL
SEE
] Chapter
367
of this title (relating to
Continuing Education
)
);
Chapter 372.
PROVISION OF SERVICES
and Evaluation
].
A screening
may be performed by an occupational therapist or an occupational therapy assistant.
Chapter 373.
SUPERVISION
Chapter 374.
DISCIPLINARY ACTIONS/DETRIMENTAL PRACTICE/COMPLAINT PROCESS/CODE OF ETHICS